Manual on Recurring Problems

in Criminal Trials

Fifth Edition

Federal Judicial Center 2001

By Honorable Donald S. Voorhees

United States District Judge

Western District of Washington

Seattle, Washington

Edited by

Genevra Kay Loveland

Revised to include cases decided during the Supreme Court’s

2000–2001 term and United States Court of Appeals cases

reported through 212 F.3d 306

This Federal Judicial Center publication was undertaken in furtherance of

the Center’s statutory mission to develop and conduct education programs

for judicial branch employees. The views expressed are those of the author

and not necessarily those of the Federal Judicial Center.

Contents iii

Contents

Preface xi

Caveat xii

Part I. Representation of Defendant 1

A. Pro Se Representation 1

1. Duty of court to determine that waiver of counsel is made knowingly

and voluntarily 1

2. Right of defendant to appear pro se after commencement of trial 4

3. Appointment of standby counsel 4

4. Control over pro se defendant 5

5. Nonlawyer as assisting counsel 6

6. Hybrid representation 6

7. Role of court unchanged when accused appears pro se 6

8. When one of several defendants acts pro se 6

9. Constructive waiver 6

B. Counsel Substitution 7

Part II. Jury 10

A. Waiver of Right to Jury Trial and Twelve-Person Jury 10

1. Waiver of right to jury trial 10

2. Waiver of right to have twelve persons on jury 11

3. Defendant may not waive right to unanimous verdict 12

B. Batson v. Kentucky—Potential Striking by Court of Peremptory Challenge

by Prosecution 12

1. Criteria for prima facie case of discrimination 13

a. Cognizable group 13

b. Defendant’s race 13

c. Circumstances raising inference of discrimination 14

2. Procedure after prima facie case of discrimination has been established 15

3. Permissible and impermissible reasons 16

C. Jury-Related Problems 18

1. Challenges for cause 18

2. Peremptory challenges 18

3. Separation of jury 19

4. Simultaneous use of two juries 19

5. Anonymous jury 20

6. Release of juror names and addresses 20

7. Appointment of foreperson by court 20

8. Replacement of juror with alternate 21

9. Substitution of alternate after deliberations have begun 21

10. Temporary disability of deliberating juror 23

11. Communications between trial court and jury 23
iv Manual on Recurring Problems in Criminal Trials, fifth edition

12. Juror misconduct or bias 25

13. Outside contact with jurors 26

14. Jurors seeing defendant in handcuffs 29

15. Note taking by jurors 29

16. Jury questioning of witnesses 30

17. Rereading testimony 30

18. Sending exhibits and other items to jury room 32

19. Sending copy of indictment to jury 34

20. Deadlocked jury 34

21. Verdict 35

a. Polling the jury 35

b. Incorrect or unclear verdict 36

c. Partial verdict 37

d. Inconsistent verdict 37

22. Interviewing of jurors after verdict 37

a. By counsel 38

b. By news media 38

23. Testimony by jurors that may impeach verdict 38

Part III. Disclosure Issues 40

A. Jencks Act Material 40

1. Production of government witness’s statements 40

2. Statement must relate to subject matter of government witness’s

testimony 41

3. Trial court must determine whether statement should be produced

under Jencks Act 42

4. Defense counsel must be given reasonable time to review Jencks Act

materials before cross-examining witness 42

5. Statements producible under the Jencks Act 43

a. Notes of witness interviews 43

b. Reports by government agents 44

c. Grand jury testimony 45

6. Destruction of interview notes 45

B. Brady Material 46

1. Materiality 46

2. Doubts to be resolved in favor of disclosure 47

3. Evidence bearing on credibility of government witnesses 47

4. Court under no duty to search files of prosecutor 47

5. Timing of disclosure of Brady material 48

6. Brady applicable only to material available to the prosecution 49

Part IV. Enforcement of Orders During Trial 51

A. Distinctions Between Civil and Criminal Contempt 51

1. Identifying nature of contempt proceedings 52

2. Types of sanctions 52
Contents v

3. Joint trials of civil and criminal contempt charges 52

4. Double jeopardy 52

B. Civil Contempt 53

1. Civil contempt may be commenced when a party has failed to comply

with a court order 53

2. Nature of contempt proceeding 53

3. Nature of remedies available to court after conviction for civil

contempt 54

4. Court may impose fine on contemnor to reimburse injured party 54

5. Effect of imprisoning for civil contempt someone already imprisoned or

charged 55

6. Procedure if contemnor convinces court that continuance of

imprisonment will not persuade him or her to comply 55

C. Criminal Contempt 56

1. Applicable statute is 18 U.S.C. § 401 56

2. Applicable rule of procedure is Federal Rule of Criminal Procedure 42 56

3. Attorney who may prosecute criminal contempt action 57

4. Rights of defendant in criminal contempt action 57

5. Right to jury trial in criminal contempt action depends on potential

sentence 58

a. Imprisonment 59

b. Fines imposed on individuals 60

c. Fines imposed on organizations 60

d. Probation 61

6. Trial by another judge 61

7. Requirements for conviction of criminal contempt 61

8. Sentencing of one found guilty of criminal contempt 62

D. Summary Contempt 62

1. Nature of conduct punishable as summary contempt 63

2. Caution to be observed in exercising summary contempt power 64

3. Finding attorney in summary contempt 65

4. Summary contempt procedure 65

a. Warning should be given and opportunity to be heard granted 65

b. Timing of contempt citation and sentencing 66

c. Judge must prepare, sign, and file order of contempt 66

d. Punishment that may be imposed 67

E. Recalcitrant Witness 67

1. Court must order recalcitrant witness to respond 68

2. Recalcitrant witness must be warned and accorded opportunity to

explain 68

3. Recalcitrant witness should first be cited in civil contempt 68

4. Recalcitrant witness cited for civil contempt should be advised of

possibility of purging the contempt 69

5. Recalcitrant witness cited for civil contempt may be subject to

punishment for criminal contempt, and should be so advised 69
vi Manual on Recurring Problems in Criminal Trials, fifth edition

6. Procedure if recalcitrant witness is confined for civil contempt but fails

to purge the contempt 70

7. Procedure upon refusal by recalcitrant witness to respond to question

before grand jury 70

8. Procedure if recalcitrant witness claims inability to remember or gives

evasive or equivocal answers 71

9. Confinement for civil contempt 72

10. Recalcitrant witness serving sentence is not entitled to credit for time

 served on contempt citation 72

F. Disruptive Defendant 72

1. Defendant should be warned 73

2. Options available to court 73

3. Removal of defendant from courtroom 73

4. Shackling and gagging of defendant 74

Part V. Evidence 75

A. Admissibility 75

1. Coconspirator statements 75

a. Court’s concern must be with statements offered to prove truth of

matter asserted 75

b. Findings required 76

(1) In determining whether a proposed coconspirator statement is

admissible, the trial court may take into consideration the

content of the statement itself 76

(2) Existence of a conspiracy must be proved 76

(3) The statement must have been made by a member of the

conspiracy 77

(4) The defendant against whom the statement is offered must

have been a member of that conspiracy 78

(5) The statement must have been made in furtherance of that

conspiracy 78

(6) The statement must have been made during the course of that

conspiracy 80

c. Court determines admissibility of coconspirator statements 81

d. Standard of proof required for admissibility of statements 81

e. Court controls order of proof 81

f. Court must make findings relative to requisites of admissibility 82

g. In-court testimony of coconspirator is receivable 83

h. Effect of acquittal of conspiracy charge on admissibility of

coconspirator statements 83

i. Right of confrontation with regard to coconspirator statements 83

j. Coconspirator statements received in civil actions 84

k. Spousal privilege with regard to coconspirator statements 84

l. Application to joint venturers 84

m. Pretrial disclosure of coconspirator statements to defendants 84
Contents vii

n. In-court presence of coconspirator declarant not needed 84

2. Identification testimony 84

a. Court must determine admissibility of identification testimony 85

b. Lineup 86

c. Identification in court without prior lineup is disfavored 86

d. Single-photograph identification or single-person show-up is

suspect 87

e. Witness may testify in court to out-of-court identification of accused 87

f. Equivocal identifications 88

g. Mug shots are inadmissible 88

h. Defendant entitled to cautionary jury instruction on identification

testimony 89

i. Admissibility of expert testimony relative to identification of accused 89

j. Admissibility of lay opinion testimony relative to identification of

accused 90

k. Identification of defendant by law enforcement officers 90

l. Defendant must be identified at trial as being perpetrator of the

crime 90

3. Tape recordings of conversations 90

a. Tape recordings may be admitted into evidence 90

b. Pretrial procedure with regard to tape recordings 91

c. Court may permit jurors to have transcripts as they listen to tape

recordings 92

d. Courtroom procedure with regard to tape recordings 92

e. Jurors may rehear tape recordings after they have begun deliberations 93

f. Tape recordings and transcripts of tape recordings may be taken to

the jury room 93

4. Balancing probative value of evidence against its prejudicial effect 94

a. Balancing under Rule 403 94

(1) Balancing within discretion of trial court 94

(2) Criteria to be applied 94

(3) Timing 95

(4) Court’s reasoning should be placed on the record 95

(5) Minimizing prejudice 95

b. Balancing under Rule 609(a) 96

(1) Timing of rulings on Rule 609(a) matters is discretionary 96

(2) Crimes of dishonesty or false statement 97

(3) Criteria to be applied in balancing 97

(4) Danger in admitting proof of conviction of same or similar

crime to that charged 97

(5) Trial court should place its reasoning on the record 98

(6) Evidence admissible with regard to conviction of witness 98

(7) Court must instruct jury regarding proper use of prior-conviction

evidence 98

(8) Admissibility of prior conviction pending appeal 98
viii Manual on Recurring Problems in Criminal Trials, fifth edition

(9) Court may place conditions on the exclusion of a prior

conviction 99

c. Balancing under Rule 609(b) 99

(1) Such convictions are only rarely admissible 99

(2) Court’s reasoning must be placed on the record if it departs

from the ten-year prohibition 99

5. Receipt of expert testimony 100

a. Qualification of expert witness 100

b. Determination of admissibility of expert testimony 100

c. Expert opinion testimony 102

d. Evaluation of reasonable reliance 103

e. Opinion testimony on ultimate issue 103

6. Requiring defendant to display body or to don clothing 104

7. Evidence improperly admitted or admitted for limited purpose 105

a. Prior consistent and inconsistent statements 105

b. Evidence admissible for one purpose but not for another 106

c. When evidence has been withdrawn from jury’s consideration 106

8. “Other crimes” evidence 106

9. Right of confrontation 107

a. Admission of prior testimony 108

b. Finding of unavailability of out-of-court declarant 108

c. Proof of adequacy of indicia of reliability 109

d. Admissibility of out-of-court statements within exceptions to

hearsay rule 110

e. Coconspirator statements not challenged by right of confrontation 111

f. Defendant’s right of confrontation includes right to be present at all

stages of trial 111

g. Placement of screen between defendant and adverse witness violates

Confrontation Clause 112

h. Effect of defendant’s voluntary absence from trial 113

i. Defendant has right to be present during jury selection 113

j. Effect of illness of defendant 114

10. Confessions by defendant 114

a. Voluntariness standard to be applied by court 114

b. Burden on prosecution to prove voluntariness of confession 116

c. Court is not to consider truthfulness of confession 116

d. Court to make affirmative finding of voluntariness 116

e. Court to instruct jury 116

11. Chain of custody 117

12. Conducting experiments before or involving jury 118

B. Witnesses 118

1. Fifth Amendment privilege against self-incrimination 118

a. Grounds for invoking privilege 119

b. Corporations and other collective entities cannot assert privilege 120
Contents ix

c. Sole proprietor cannot claim privilege for records kept as required by

law 121

d. Waiver of privilege by witness 122

e. Waiver of privilege by testifying defendant 123

f. Requiring defendant to give certain evidence does not violate

privilege 123

g. Prosecution witness may invoke privilege on cross-examination 125

h. Court should be alert to any indication that witness wishes to invoke

privilege 125

i. Trial court must determine whether privilege has been properly

invoked 126

j. Blanket assertions of privilege are usually not allowed 128

k. Witness not to be called if it is known he or she will claim privilege 128

l. Effect of grant of immunity 128

m. Defendant may or may not be able to claim privilege after pleading

guilty 129

n. Comment in argument after assertion of privilege 129

2. Introducing information adverse to government witness during direct

examination 130

3. Cross-examination of government witness 131

4. Interviewing of government witnesses by defense counsel 133

a. Both sides may interview 133

b. Witness may refuse to be interviewed by defense counsel 134

c. Government may not discourage interviewing of witnesses by

defendant 134

d. Government may request a temporary restraining order to prevent

harassment of witnesses 135

5. Exclusion of witnesses from courtroom 135

6. Defense counsel conferring with testifying defendant during recess 136

C. Other Issues 137

1. Stipulation of facts 137

2. Role of judge in trial 138

3. Comment on evidence by court 139

4. Permitting reopening after resting 140

5. Bench conferences 140

Part VI. Argument 142

A. Opening Statement 142

1. By the prosecutor 142

2. By defense counsel 142

B. Final Argument 143

1. Right to final argument 143

2. Control by court 143

3. Time limitations 143

4. Prosecutor’s comment on defendant’s failure to testify 143
x Manual on Recurring Problems in Criminal Trials, fifth edition

a. Direct reference to defendant’s failure to testify 143

b. Indirect reference to defendant’s failure to testify 144

5. Prosecutor’s comment on defendant’s failure to present exculpatory

evidence 144

6. Improper arguments by government 145

7. Arguments must be from the record 147

8. Duty of court to intervene in improper argument 147

9. Comment on failure of codefendant to testify 148

C. Vouching for Witness 148

Part VII. Multiple Defendants 150

A. Severance of Defendants 150

1. Individuals indicted together are ordinarily to be tried together 150

2. When joinder not permitted 151

3. Better chance of acquittal does not warrant severance 151

4. Motion for severance by defendant claiming need for testimony of

codefendant 151

5. Motion for severance based on antagonistic defenses 152

6. Defendant’s desire to testify on one count but not on another 153

7. Factors to be considered by court in assessing motion for severance 153

8. Defendant’s motion for severance waived if not renewed at close of

evidence 154

B. Bruton Rule 154

1. Determining whether Bruton rule is applicable 155

2. Avoidance of Bruton problem 156

C. Calling of Codefendant as a Witness 156

D. Disclosure to Jury of Codefendant’s Guilty Plea 157

1. May be reversible error to disclose guilty plea of codefendant to jury 157

2. Occasions when disclosure of codefendant’s guilty plea is proper 158

Part VIII. Verdict 159

A. Special Interrogatories in Criminal Cases 159

B. Directing Verdict by Court 160

C. Motion for Judgment of Acquittal 160

1. Criteria to be applied by court in ruling on motion for judgment of

acquittal 160

2. Reservation of ruling on motion for judgment of acquittal 161

D. Mistrial 161

1. Court has power to declare mistrial 161

2. Mistrial to be avoided if possible 162

3. Alternative courses of action must be considered 162

4. Declaring mistrial because of deadlocked jury 162

5. Improvident declaration of mistrial 163

Table of Cases 165
xi

Preface

Among the many significant contributions made to the federal judiciary by

the late Judge Donald Voorhees is the Manual on Recurring Problems in

Criminal Trials. During his tenure on the Federal Judicial Center’s Board

from 1979 to 1983, Judge Voorhees developed the manual to assist his fellow judges in researching important issues that arise frequently in criminal

trials. Many federal judges have found the book to be an invaluable resource—a research tool that enables them to quickly locate authority on

specific issues that often confront them.

Although in this edition, as in the previous one, the editors have added

some material and made some changes in organization and format, the

manual adheres to Judge Voorhees’s original concept of simplicity and ease

of use. As his “Caveat” (written to accompany the third edition) emphasizes,

the book is not meant to be a comprehensive treatise on criminal law, but

rather a basic guide to the law governing many of the procedural matters

that arise frequently in criminal trials. Consequently, the manual should

not be cited as authority in opinions or other materials, nor should the case

summaries, which have been updated through October 2000, be considered substitutes for the judicial opinions they reference.

We at the Center take pride in continuing the work begun by Judge

Voorhees with the publication of the fifth edition of his manual.

Fern M. Smith

Director, Federal Judicial Center
xii

Caveat

These materials were originally prepared for distribution at the seminars

for newly appointed district judges at the Federal Judicial Center. They do

not purport to be an exhaustive briefing of the subjects that they touch.

Rather, they are a collection of decisions on many of the procedural problems that plague trial judges. It goes without saying that a rule laid down in

one circuit is not necessarily the rule in all, or any, of the other circuits. The

headnotes of the cited cases should, however, lead through the West System

to the decided cases upon the same topic from the other circuits. I am hopeful

that this outline may be of assistance in suggesting appropriate responses to

the recurring problems that confront trial judges.

I wish to give much credit to my secretary, Mary Anne Anderson, who

has so ably assisted me in preparing and assembling all of the materials

which make up this manual.

Donald S. Voorhees

March 1988
Part I. Representation of Defendant 1

Part I

Representation of Defendant

A. Pro Se Representation

A defendant in a criminal prosecution has the right to counsel. If the defendant cannot afford to employ counsel, counsel must be appointed by

the court. The defendant has the absolute right, however, to waive the right

to counsel and proceed pro se.

Faretta v. California, 422 U.S. 806 (1975)

1. Duty of court to determine that waiver of counsel is

made knowingly and voluntarily

In order to proceed pro se, the defendant must knowingly and intelligently

waive his or her right to counsel.

Faretta v. California, 422 U.S. 806 (1975)

Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)

United States v. Salerno, 61 F.3d 214 (3d Cir. 1995)

United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998)

The touchstone in determining whether the waiver was voluntary is what

the defendant, not the district court, reasonably believed.

United States v. Proctor, 166 F.3d 396 (1st Cir. 1999)

In the face of ambiguity, the court must favor the right to counsel.

Truitt v. Fair, 822 F.2d 166 (1st Cir. 1987)

The judge must interrogate the defendant to be sure that he or she understands the disadvantages of self-representation; the nature of the charge;

the range of penalties; that the defendant will be proceeding alone in a complex area where experience and professional training are greatly to be desired; that an attorney might be aware of possible defenses to the charge;

and that the judge believes it would be in the best interests of the defendant

to be represented by an attorney.

Von Moltke v. Gillies, 332 U.S. 708 (1948)

Faretta v. California, 422 U.S. 806 (1975)

Patterson v. United States, 487 U.S. 285 (1988)

United States v. Chaney, 662 F.2d 1148 (5th Cir. 1981)

United States v. Harris, 683 F.2d 322 (9th Cir. 1982)

But see United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982)

United States v. Welty, 674 F.2d 185 (3d Cir. 1982)

United States v. Edwards, 716 F.2d 822 (11th Cir. 1983)
2 Manual on Recurring Problems in Criminal Trials, fifth edition

Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994)

United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998)

A defendant’s technical knowledge is not relevant to an assessment of his or

her knowing exercise of the right to defend himself or herself.

Faretta v. California, 422 U.S. 806 (1975)

See Martinez v. Court of Appeal of California, 120 S. Ct. 684 (2000)

A determination that a defendant lacks expertise or professional capabilities does not justify denying him or her the right of self-representation.

Peters v. Gunn, 33 F.3d 1190 (9th Cir. 1994)

Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994)

United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995)

In assessing a defendant’s waiver of counsel, the trial judge is required to

focus on the defendant’s understanding of the importance of counsel, not

of substantive law or procedural details.

Lopez v. Thompson, 202 F.3d 1110 (9th Cir. 2000)

The court should not delegate this inquiry to the prosecutor.

United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988)

Several circuits have taken the position that no specific inquiries or special

hearings must be conducted to determine whether the defendant has knowingly and intelligently waived the right to counsel.

United States v. Tompkins, 623 F.2d 824 (2d Cir. 1980)

United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982)

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

United States v. Bell, 901 F.2d 574 (7th Cir. 1990) (judge must make sufficient

inquiry to determine that the defendant in fact understands the dangers involved in self-representation)

A generic waiver form cannot replace the colloquy between judge and defendant set forth for the record.

Henderson v. Frank, 155 F.3d 159 (3d Cir. 1998)

It is not necessary that the court issue any particular warning or make specific findings of fact before it finds that a defendant has made a knowing

and intelligent waiver of the right to counsel and permits the defendant to

proceed pro se. However, such on-the-record findings are recommended.

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

It is the court’s responsibility to provide the defendant with the requisite

information regarding the nature of the charges, the possible penalties, and

the dangers and disadvantages of self-representation.

United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000)
Part I. Representation of Defendant 3

Counsel’s warning to a defendant that he or she may be required to proceed

without counsel is insufficient.

Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993)

In the absence of a Faretta colloquy, neither waiver nor waiver by conduct

can be found, although an alleged death threat issued by the defendant might

be egregious enough to warrant forfeiture of right to counsel.

United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995)

A defendant’s assertion of the right to self-representation must be unequivocal. A defendant who vacillates between assertion of the right to proceed pro se and assertion of the right to counsel may be presumed to be

requesting the assistance of counsel.

Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)

A defendant may make a conditional waiver, but it must be unequivocal.

Hamilton v. Groose, 28 F.3d 859 (8th Cir. 1994)

The conditional nature of a defendant’s request in itself is not evidence of

equivocation.

United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000)

A request for substitution of counsel is not an unequivocal waiver.

Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993)

A defendant will not normally be deemed to have waived the right to counsel by reluctantly agreeing to proceed pro se under circumstances where it

may appear there is no choice.

United States v. Salerno, 61 F.3d 214 (3d Cir. 1995)

Obstructionist behavior during pretrial proceedings can justify a court’s

holding that the defendant forfeited the right to self-representation.

United States v. Brock, 159 F.3d 1077 (7th Cir. 1998)

A defendant who invokes the right to proceed pro se only as an alternative

to the appointment of a particular defense attorney as his or her counsel is

considered to have made an unequivocal request to proceed pro se, and

must be allowed to do so.

Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989)

If the defendant is to be shackled, Faretta requires that the trial judge inform the defendant of the effect shackling would have on the defendant’s

ability to represent himself or herself.

Abdullah v. Groose, 44 F.3d 692 (8th Cir. 1995), reversed on other grounds, 75

F.3d 408 (8th Cir. 1996)

See also Davidson v. Riley, 44 F.3d 1118 (2d Cir. 1995)
4 Manual on Recurring Problems in Criminal Trials, fifth edition

The court should warn an incarcerated defendant who wishes to proceed

pro se that he or she will have limited access to legal materials.

United States v. Pina, 844 F.2d 1 (1st Cir. 1988)

The court must determine that the defendant is mentally competent to make

the decision to appear pro se. The competency standard for waiving counsel is the same as the standard for standing trial.

Godinez v. Moran, 509 U.S. 389 (1993)

Branscomb v. Norris, 47 F.3d 258 (8th Cir. 1995)

United States v. Cash, 47 F.3d 1083 (11th Cir. 1995)

2. Right of defendant to appear pro se after

commencement of trial

Once a trial has begun, the right of the defendant to discharge his or her

counsel and to appear pro se is sharply curtailed.

Sapienza v. Vincent, 534 F.2d 1007 (2d Cir. 1976)

Chapman v. United States, 553 F.2d 886 (5th Cir. 1977)

A motion to proceed pro se is timely if made prior to the impaneling of a

jury unless the motion is shown to be a delaying tactic.

Chapman v. United States, 553 F.2d 886 (5th Cir. 1977)

Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982)

See also Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997)

3. Appointment of standby counsel

The appointment of standby counsel to represent the defendant does not

violate the defendant’s Sixth Amendment right to proceed pro se even if the

appointment is made over the defendant’s objection.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Standby counsel cannot be allowed to take over the defendant’s case. The

Sixth Amendment requires that a pro se defendant be allowed to control

the organization and content of his or her defense. The defendant is to use

the advice of standby counsel as he or she sees fit.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

There is, however, no absolute bar on standby counsel’s unsolicited participation in the presentation of a pro se defendant’s case before the jury.

Standby counsel may properly assist the pro se defendant before the jury in

completing tasks the defendant clearly wishes to complete, such as introducing evidence and objecting to testimony. Standby counsel may also

help ensure the defendant’s compliance with the basic rules of courtroom
Part I. Representation of Defendant 5

protocol and procedure. However, standby counsel’s participation may not

be so intrusive as to destroy the jury’s perception that the defendant is representing himself or herself.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

Standby counsel is also permitted to participate in the presentation of a pro

se defendant’s case outside the presence of a jury. However, the pro se defendant must be allowed to address the judge freely on his or her own behalf, and disputes between counsel and the pro se defendant must be resolved in the defendant’s favor in matters that are normally left to the discretion of counsel.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

A defendant’s right of self-representation was violated by his exclusion from

thirty bench conferences even though his standby counsel participated in

the conferences.

United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995)

Standby counsel should be appointed to assist the defendant and to replace

the defendant if the court determines during trial that the defendant can

no longer be permitted to proceed pro se.

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)

United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973)

United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988)

Standby counsel’s job is to assist the defendant in procedural matters the

defendant is unfamiliar with and to facilitate a speedy and efficient trial by

avoiding the delay often associated with pro se representation.

McKaskle v. Wiggins, 465 U.S. 168 (1984)

United States v. Norris, 780 F.2d 1207 (5th Cir. 1986)

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

The defendant does not have an absolute right to standby counsel of his or

her choice.

United States v. Campbell, 874 F.2d 838 (1st Cir. 1989)

4. Control over pro se defendant

If a pro se defendant persists in refusing to obey the court’s directions or in

injecting extraneous and irrelevant matter into the record, the court may

direct standby counsel to take over the representation of the defendant.

United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972)

United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973)

United States v. Anderson, 577 F.2d 258 (5th Cir. 1978)

United States v. Brock, 159 F.3d 1077 (7th Cir. 1998)
6 Manual on Recurring Problems in Criminal Trials, fifth edition

5. Nonlawyer as assisting counsel

A pro se defendant does not have the right to have a nonlawyer act as his or

her assisting counsel.

United States v. Kelley, 539 F.2d 1199 (9th Cir. 1976)

6. Hybrid representation

A defendant may appear pro se or by counsel but has no right to appear

partly by himself or herself and partly by counsel.

United States v. Shea, 508 F.2d 82 (5th Cir. 1975)

United States v. Hill, 526 F.2d 1019 (10th Cir. 1975)

United States v. Cyphers, 556 F.2d 630 (2d Cir. 1977)

United States v. Campbell, 61 F.3d 976 (1st Cir. 1995)

United States v. Olano, 62 F.3d 1180 (9th Cir. 1995)

7. Role of court unchanged when accused appears pro se

When the accused proceeds pro se, the court’s role is not altered and no

new obligations are imposed on the trial judge.

United States v. Trapnell, 512 F.2d 10 (9th Cir. 1975)

A defendant who proceeds pro se does so with no greater rights than a

defendant represented by a lawyer, and the trial court is under no obligation to become an advocate for or to assist and guide a pro se defendant.

United States v. Pinkey, 548 F.2d 305 (10th Cir. 1977)

Birl v. Estelle, 660 F.2d 592 (5th Cir. 1981)

United States v. Merrill, 746 F.2d 458 (9th Cir. 1984)

8. When one of several defendants acts pro se

When one codefendant elects to proceed pro se, the court must take steps

prior to trial to ensure that his or her actions do not prejudice the remaining

codefendants.

United States v. Sacco, 563 F.2d 552 (2d Cir. 1977)

9. Constructive waiver

When a defendant repeatedly fails to secure counsel of his or her choice

through dilatory conduct, the court may deny an additional continuance

for the purpose of securing counsel even if it results in the defendant’s being unrepresented at trial.

United States v. Kelm, 827 F.2d 1319 (9th Cir. 1987)

United States v. Gallop, 838 F.2d 105 (4th Cir. 1988)

United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998)
Part I. Representation of Defendant 7

Proof of dilatory tactics must appear in the record.

United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987)

Before proceeding with a criminal prosecution against an unrepresented

defendant who has not expressly waived counsel, the court must inquire on

the record into the defendant’s financial ability to retain counsel and must

inform the defendant of his or her right to court-appointed counsel.

United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987)

A defendant’s persistent and unreasonable demand for dismissal of successive appointed counsel may be treated as the functional equivalent of a

knowing and voluntary waiver of counsel.

United States v. Fazzini, 871 F.2d 635 (7th Cir. 1989)

A defendant who is abusive to his or her counsel may waive the right to

counsel.

United States v. McLeod, 53 F.3d 322 (11th Cir. 1995)

United States v. Leggett, 162 F.3d 237 (3d Cir. 1998)

United States v. Brock, 159 F.3d 1077 (7th Cir. 1998)

B. Counsel Substitution

A trial court has discretion to refuse to allow last-minute substitution of

counsel if permitting substitution would disrupt the court’s trial schedule.

United States v. Michelson, 559 F.2d 567 (9th Cir. 1977)

United States v. Solina, 733 F.2d 1208 (7th Cir. 1984)

Neal v. Texas, 870 F.2d 312 (5th Cir. 1989)

United States v. Corporan-Cuevas, 35 F.3d 953 (4th Cir. 1994)

United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999)

But see United States v. Mullen, 32 F.3d 891 (4th Cir. 1994) (substitution permitted when blame for delay lies with the government); United States v. Pollani,

146 F.3d 269 (5th Cir. 1998) (court erred in disallowing counsel to represent

defendant when defendant stated he wanted representation even if continuance was denied)

For substitution of counsel to be warranted during trial, a defendant must

show good cause, such as conflict of interest, complete breakdown of communications, or irreconcilable conflict that could lead to an apparently unjust verdict.

McKee v. Harris, 649 F.2d 927 (2d Cir. 1981)

Wilson v. Mintzes, 761 F.2d 275 (6th Cir. 1985)

United States v. Pierce, 60 F.3d 886 (1st Cir. 1995)

United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995)

United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998)

United States v. Moore, 159 F.3d 1154 (9th Cir. 1998)
8 Manual on Recurring Problems in Criminal Trials, fifth edition

Consideration of a midtrial motion to substitute counsel requires a balancing of the accused’s right to a reasonable opportunity to obtain counsel

of his or her choice with the public’s interest in the prompt and efficient

administration of justice.

Wilson v. Mintzes, 761 F.2d 275 (6th Cir. 1985)

When a defendant makes a request to substitute counsel or to appear pro se

on the eve of trial, the court must inquire into the reasons for the defendant’s

dissatisfaction with his or her attorney before ruling on the request.

Thomas v. Wainwright, 767 F.2d 738 (11th Cir. 1985)

McMahon v. Fulcomer, 821 F.2d 934 (3d Cir. 1987)

Sanchez v. Mondragon, 858 F.2d 1462 (10th Cir. 1988)

United States v. Mullen, 32 F.3d 891 (4th Cir. 1994)

United States v. Pierce, 60 F.3d 886 (1st Cir. 1995)

A defendant does not have the absolute right to counsel of his or her own

choosing. The primary aim of the Sixth Amendment is to guarantee an

effective advocate for each criminal defendant, rather than to ensure that

each defendant will be represented by the lawyer he or she prefers. Substitution of counsel is thus a matter committed to the discretion of the trial

court.

Wheat v. United States, 486 U.S. 153 (1988)

Nerisen v. Solem, 715 F.2d 415 (8th Cir. 1983)

Richardson v. Lucas, 741 F.2d 753 (5th Cir. 1984)

Carey v. Minnesota, 767 F.2d 440 (8th Cir. 1985)

United States v. Arrington, 867 F.2d 122 (2d Cir. 1989)

United States v. Morsley, 64 F.3d 907 (4th Cir. 1995)

United States v. Izydore, 167 F.3d 213 (5th Cir. 1999)

To determine that a defendant voluntarily chose self-representation, the

court must find that he or she does not have “good cause” warranting a

substitution of counsel. The court must ensure adequately that the defendant was not exercising a choice “‘between incompetent or unprepared counsel and appearing pro se.’”

Sanchez v. Mondragon, 858 F.2d 1462 (10th Cir. 1988) (quoting United States

v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987))

If counsel takes a position antagonistic to the defendant at the hearing on

substitution of counsel, the court must appoint independent counsel to

represent the defendant at that hearing.

United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987)
Part I. Representation of Defendant 9

If the court determines that substitution of counsel is not warranted, the

court may insist that the defendant choose between continuing representation by his or her existing counsel and appearing pro se.

United States v. Welty, 674 F.2d 185 (3d Cir. 1982)

United States v. Padilla, 819 F.2d 952 (10th Cir. 1987)

United States v. Gallop, 838 F.2d 105 (4th Cir. 1988)

Meyer v. Sargent, 854 F.2d 1110 (8th Cir. 1988)
10 Manual on Recurring Problems in Criminal Trials, fifth edition

Part II

Jury

A. Waiver of Right to Jury Trial and TwelvePerson Jury

1. Waiver of right to jury trial

The defendant may waive his or her right to a jury trial. Federal Rule of

Criminal Procedure 23(a) provides that the waiver must be in writing and

approved by the court with the consent of the government.

A written waiver alone is not sufficient, however. The court must interrogate the defendant on the record to make sure that the waiver is voluntarily

and knowingly made. The court should question the defendant to make

sure that the defendant knows (1) the difference between a jury trial and a

nonjury trial; (2) that he or she is entitled to participate in the selection of

the jury; (3) that the verdict of the jury must be unanimous; and (4) that if

the defendant waives the right to a jury trial, the court alone will determine

the question of guilt or innocence.

The trial judge should accept a waiver of the right to trial by jury only after

determining that there was an intelligent and competent waiver by the accused. The duty of the trial court is not to permit the jury to be discharged

as a mere matter of rote. The trial court should directly question the defendant to determine the validity of any proffered waiver of a jury trial.

United States v. David, 511 F.2d 355 (D.C. Cir. 1975)

United States v. Anderson, 704 F.2d 117 (3d Cir. 1983) (colloquy with defendant

preferred but not required)

United States v. Martin, 704 F.2d 267 (6th Cir. 1983)

United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984)

United States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989) (omission of full menu

of advice is not an independent basis for reversal)

United States v. Robinson, 8 F.3d 418 (7th Cir. 1993) (absence of written waiver

is not dispositive)

United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) (strict compliance with

Rule 23(a) is not required, but defendant should be informed on the record)

But see United States v. Agee, 83 F.3d 882 (7th Cir. 1996) (court cannot find

defendant waived jury trial based on arguable implications and inferences

alone)

The Ninth Circuit has held that a presumption of validity attends a jurytrial waiver executed pursuant to Rule 23(a).
Part II. Jury 11

United States v. Cochran, 770 F.2d 850 (9th Cir. 1985)

But see United States v. Ferreira-Alameda, 815 F.2d 1251 (9th Cir. 1987)

(defendant’s knowing, voluntary, and intelligent consent is a precondition to

an effective waiver and is distinct from the requirement of a written waiver)

The presumption of validity disappears when there is reason to question

the defendant’s mental or emotional soundness, and the court may not accept a written waiver of a jury trial without conducting an in-depth colloquy with the defendant.

United States v. Christensen, 18 F.3d 822 (9th Cir. 1994)

See also United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997) (court

must conduct a colloquy with defendant if a language barrier exists)

2. Waiver of right to have twelve persons on jury

Federal Rule of Criminal Procedure 23(b) provides that at any time before

verdict the parties may stipulate in writing, with the approval of the court,

that the jury shall consist of any number of members fewer than twelve, or

that a valid verdict may be returned by a jury of fewer than twelve members

should the court find it necessary to excuse one or more jurors for just

cause after the trial commences. Even without such a stipulation, the rule

provides that the court has the discretion to excuse a juror for just cause

after the jury has retired to consider its verdict, and to allow the remaining

eleven jurors to deliver a verdict.

The rule’s requirement of a written stipulation has been deemed procedural and courts have found oral stipulations valid when the defendant

gave knowing and intelligent consent in open court.

United States v. Lane, 479 F.2d 1134 (6th Cir. 1973)

United States v. Ricks, 475 F.2d 1326 (D.C. Cir. 1973)

Some courts have held that oral consent of defense counsel, in open court

with the defendant present, is sufficient under Rule 23(b) to waive the right

to a twelve-member jury.

Williams v. United States, 332 F.2d 36 (7th Cir. 1964)

United States v. Roby, 592 F.2d 406 (8th Cir. 1979)

United States v. Spiegel, 604 F.2d 961 (5th Cir. 1979) (defense counsel consented

orally at sidebar conference and signed written agreement)

United States v. Fisher, 912 F.2d 728 (4th Cir. 1990) (defendant gave knowing

and intelligent consent in chambers, and agreement was announced in presence of defendant and counsel in open court)

But see United States v. Reyes, 603 F.2d 69 (9th Cir. 1979) (defense counsel’s oral

consent in open court insufficient); United States v. Robertson, 45 F.3d 1423

(10th Cir. 1995) (no discussion was ever held in defendant’s presence, so waiver

was insufficient)
12 Manual on Recurring Problems in Criminal Trials, fifth edition

In the absence of a stipulation by the defendant, the trial judge has a duty

under Rule 23(b) to find, on the record, just cause for excusing an absent

juror.

United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994)

United States v. Reese, 33 F.3d 166 (2d Cir. 1994)

3. Defendant may not waive right to unanimous verdict

A defendant in a criminal prosecution may not waive the right to a unanimous verdict.

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)

United States v. Scalzitti, 578 F.2d 507 (3d Cir. 1978)

United States v. Pachay, 711 F.2d 488 (2d Cir. 1983)

United States v. Ullah, 976 F.2d 509 (9th Cir. 1992)

Contra Sanchez v. United States, 782 F.2d 928 (11th Cir. 1986) (If jury has had

reasonable time to deliberate and has advised court that it could not reach

decision, defendant may waive right to unanimous verdict. Waiver must have

been initiated by defendant. Court must carefully explain to defendant

defendant’s right to a unanimous verdict and the consequences of a waiver of

a unanimous verdict.)

B. Batson v. Kentucky—Potential Striking

by Court of Peremptory Challenge by

Prosecution

Batson v. Kentucky, 476 U.S. 79 (1986), authorizes the court to strike the

prosecution’s peremptory challenge of a potential juror of the same cognizable racial group as the defendant. Batson does not mandate the striking

of the challenge; it only authorizes the striking of the challenge.

A criminal defendant is also prohibited from exercising peremptory challenges based on purposeful racial discrimination.

Georgia v. McCollum, 505 U.S. 42 (1992)

Peremptory challenges based on gender are prohibited.

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)

Challenges that may result in a disparate impact on women do not raise a

Batson claim.

United States v. Davis, 40 F.3d 1069 (10th Cir. 1994)
Part II. Jury 13

1. Criteria for prima facie case of discrimination

A prima facie case of discrimination in jury selection is established when

the defendant is a member of a cognizable racial group, the prosecutor uses

peremptory challenges to remove members of that group from the jury,

and “these facts and other relevant circumstances raise an inference” that

the prosecutor excluded jurors on account of their race.

Batson v. Kentucky, 476 U.S. 79 (1986)

The defendant must raise the issue in a timely fashion.

Government of Virgin Islands v. Forte, 806 F.2d 73 (3d Cir. 1986)

United States v. Erwin, 793 F.2d 656 (5th Cir. 1986)

United States v. Dobynes, 905 F.2d 1192 (8th Cir. 1990)

Courts have found an objection made after the jury had been sworn to be

timely.

United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)

Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir. 1990)

a. Cognizable group

American Indians are a cognizable racial group for Batson purposes.

United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987)

Batson may apply to ethnic, as well as racial, groups.

United States v. Bucci, 839 F.2d 825 (1st Cir. 1988)

Black males are not a cognizable group.

United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986)

Young adults are not a cognizable group.

United States v. Cresta, 825 F.2d 538 (1st Cir. 1987)

Johnson v. McCaughtry, 92 F.3d 585 (7th Cir. 1996)

Teachers are not a cognizable group.

United States v. Johnson, 4 F.3d 904 (10th Cir. 1993)

The Third Circuit has held that in cases involving white defendants, Batson

prohibits a prosecutor from using peremptory challenges to strike whites

from the jury panel on account of their race.

Government of Virgin Islands v. Forte, 865 F.2d 59 (3d Cir. 1989)

b. Defendant’s race

The Supreme Court rejected a white defendant’s claim that a prosecutor’s

use of peremptory challenges to strike all black veniremembers from the

jury violated the Sixth Amendment.

Holland v. Illinois, 493 U.S. 474 (1990)
14 Manual on Recurring Problems in Criminal Trials, fifth edition

However, under the Equal Protection Clause, a criminal defendant may

object to race-based exclusions of jurors whether or not the defendant and

the excluded jurors share the same race.

Powers v. Ohio, 499 U.S. 400 (1991)

Campbell v. Louisiana, 523 U.S. 392 (1998) (a defendant also may object to racebased exclusions of grand jurors)

c. Circumstances raising inference of discrimination

Mere exclusion of a juror of the defendant’s race, without more, does not

raise an inference of purposeful discrimination necessary to establish a prima

facie case.

United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986)

United States v. Porter, 831 F.2d 760 (8th Cir. 1987)

United States v. Bergodere, 40 F.3d 512 (1st Cir. 1994)

The number of black jurors peremptorily struck is not dispositive of the

issue whether a prima facie case of discrimination has been established. If a

black juror is struck and the defense raises a Batson challenge, the court

must consider whether there are other factors in the case that support an

inference of discriminatory purpose in striking the juror.

United States v. Horsley, 864 F.2d 1543 (11th Cir. 1989)

Use of a peremptory challenge to strike the last remaining juror of a defendant’s race is sufficient to raise an inference of exclusion based on race.

United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987)

The presence of minority members on the jury may undercut an inference

of impermissible discrimination.

United States v. Young-Bey, 893 F.2d 178 (8th Cir. 1990)

However, a prima facie case of discrimination may be made even when one

or more blacks serve on the jury.

United States v. Battle, 836 F.2d 1084 (8th Cir. 1987)

United States v. Clemons, 843 F.2d 741 (3d Cir. 1988)

The Sixth Circuit has held that the prosecution’s use of all its peremptory

challenges against blacks does not, standing alone, give rise to an inference

of intentional discrimination. Whether the inference will be drawn depends

on additional factors, such as whether the final jury has a significantly lower

percentage of minority members than the jury pool and whether the defense displayed a pattern of strikes against non-minority members.

United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988)

See United States v. Hill, 146 F.3d 337 (6th Cir. 1998)
Part II. Jury 15

The Eleventh Circuit has held that removal of three of four black

veniremembers establishes a prima facie case of race discrimination.

United States v. Stewart, 65 F.3d 918 (11th Cir. 1995)

The Ninth Circuit has ruled that striking five out of nine black

veniremembers is sufficient to establish a prima facie case. Exercising 56%

of all peremptory strikes against blacks, who constituted 30% of the venire,

also supports an inference of discrimination.

Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995), overruled on other grounds sub

nom. Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999)

See also United States v. Grisham, 63 F.3d 1074 (11th Cir. 1995)

The Third Circuit has rejected a government proposal for a per se rule that

no prima facie case exists unless a certain number or percentage of challenged jurors are black.

United States v. Clemons, 843 F.2d 741 (3d Cir. 1988)

The Third Circuit has held that the combination of a defendant’s race, exclusion of at least one black potential juror, and the circumstances of the

crime (white victim and black defendant) is sufficient to establish a prima

facie case.

Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995)

The Eighth Circuit has held that a history of systematic exclusion of blacks

from juries in a particular district is a relevant factor in determining whether

a defendant has established a Batson claim.

United States v. Hughes, 864 F.2d 78 (8th Cir. 1988)

2. Procedure after prima facie case of discrimination has

been established

Once the defendant has established a prima facie case of discrimination,

the burden of production shifts to the prosecution to present a neutral explanation for its challenges.

Batson v. Kentucky, 476 U.S. 79 (1986)

Purkett v. Elem, 514 U.S. 765 (1995)

The issue at this stage is the facial validity of the prosecutor’s explanation.

The persuasiveness of the justification must be decided separately.

Purkett v. Elem, 514 U.S. 765 (1995)

The favored method for evaluating a Batson challenge is to determine

whether the defendant has shown a prima facie violation when the issue is

first raised. If the court finds a prima facie case of discrimination, it should

require the government to articulate reasons for exercising its peremptory
16 Manual on Recurring Problems in Criminal Trials, fifth edition

challenges to remove members of the defendant’s racial group. The court

should then determine if the reasons presented are facially neutral. If so,

the court should provide the defendant with the opportunity to establish

pretext and then issue a specific ruling on each juror in question supported

by its findings of fact and its rationale for the ruling.

United States v. Joe, 928 F.2d 99 (4th Cir. 1991)

Some circuits require the court to hold an adversary hearing to consider the

prosecutor’s reasons and permit rebuttal by the defendant.

United States v. Wilson, 816 F.2d 421 (8th Cir. 1987)

United States v. Alcantar, 897 F.2d 436 (9th Cir. 1990)

The Fifth, Sixth, and Seventh Circuits do not require such a hearing.

United States v. Davis, 809 F.2d 1194 (6th Cir. 1987)

United States v. Clemons, 941 F.2d 321 (5th Cir. 1991) (trial judge must have

discretion to fashion a procedure to meet the particular circumstances presented)

United States v. Baltrunas, 957 F.2d 491 (7th Cir. 1992) (an adversarial hearing

may be the most appropriate approach in most cases, but the trial judge has

discretion to determine best procedure)

If disclosure of the prosecution’s reasons would reveal strategy, an ex parte

hearing or in camera submission may be permissible.

United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)

United States v. Tindle, 860 F.2d 125 (4th Cir. 1988)

However, such procedures should be used only if there are compelling reasons.

United States v. Tucker, 836 F.2d 334 (7th Cir. 1988)

United States v. Tindle, 860 F.2d 125 (4th Cir. 1988)

3. Permissible and impermissible reasons

A neutral explanation means an explanation based on something other than

the race of the juror. Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.

Hernandez v. New York, 500 U.S. 352 (1991)

Purkett v. Elem, 514 U.S. 765 (1995)

United States v. Brooks, 2 F.3d 838 (8th Cir. 1993)

United States v. Perez, 35 F.3d 632 (1st Cir. 1994)

United States v. Lampkins, 47 F.3d 175 (7th Cir. 1995) (gender-neutral

explanation)

United States v. Johnson, 54 F.3d 1150 (4th Cir. 1995)

United States v. Annigoni, 68 F.3d 279 (9th Cir. 1995)

United States v. Tolliver, 61 F.3d 1189 (5th Cir. 1995), vacated on other grounds

sub nom. Moore v. United States, 519 U.S. 802 (1996)
Part II. Jury 17

Hurd v. Pittsburg State Univ., 109 F.3d 1540 (10th Cir. 1999) (race-neutral reason may rest on mistaken belief)

Justification of a juror strike does not require an explanation that is persuasive, or even plausible. Persuasiveness of the justification becomes relevant only at the third step of the Batson process, when the opponent of the

strike must prove purposeful discrimination.

Purkett v. Elem, 514 U.S. 765 (1995)

To meet the burden of production at the second step of Batson analysis, the

prosecution need only state a reason that is facially race-neutral, even if it

bears no relation whatsoever to the case to be tried or to the person’s ability

to serve as a juror. The reason may be implausible or fantastic, even silly or

superstitious, and yet still be legitimate.

Elem v. Purkett, 64 F.3d 1195 (8th Cir. 1995)

Mere denial of discriminatory motive or affirmation of good faith is insufficient.

Batson v. Kentucky, 476 U.S. 79 (1986)

United States v. Wilson, 884 F.2d 1121 (8th Cir. 1989)

United States v. Horsley, 864 F.2d 1543 (11th Cir. 1989)

United States v. Canoy, 38 F.2d 893 (7th Cir. 1994)

To rebut a prima facie case of discrimination, the government must provide reasons that apply to the challenged jurors but not to the unchallenged

ones.

United States v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993)

Hollingsworth v. Burton, 30 F.3d 109 (11th Cir. 1994)

United States v. Sowa, 34 F.3d 447 (7th Cir. 1994)

Devose v. Norris, 53 F.3d 201 (8th Cir. 1995)

But see United States v. Kunzman, 54 F.3d 1522 (10th Cir. 1995)

Excluding even one juror for a racial reason is prohibited by Batson.

United States v. Battle, 836 F.2d 1084 (8th Cir. 1987)

United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987), vacated in part on other

grounds, 836 F.2d 1312 (1988)

Harrison v. Ryan, 909 F.2d 84 (3d Cir. 1990)

United States v. Bishop, 959 F.2d 820 (9th Cir. 1992)

Although reasons for excluding jurors that are tangentially related to race

may be acceptable, the assumption that black jurors would be sympathetic

to black defense counsel, or unsympathetic to a white victim, is not an acceptable reason for excluding black jurors.

United States v. Brown, 817 F.2d 674 (10th Cir. 1987)

Johnson v. Love, 40 F.3d 658 (3d Cir. 1994)
18 Manual on Recurring Problems in Criminal Trials, fifth edition

The assumption that black jurors, but not white jurors, would be pressured

by friends of the defendant to be sympathetic to the defendant is also not

an acceptable reason for excluding black jurors.

United States v. Wilson, 884 F.2d 1121 (8th Cir. 1989)

A policy of striking all who speak a given language, without regard to the

particular circumstances of the trial or the individual responses of the jurors, may be found to be a pretext for racial discrimination.

Hernandez v. New York, 500 U.S. 352 (1991)

C. Jury-Related Problems

1. Challenges for cause

If a prospective juror imparts information on voir dire that indicates an

inability to be impartial or to be free from fear, that individual should be

excused for cause. If this is not done, a party may have to exercise a peremptory challenge which should not have to be exercised.

United States v. Nell, 526 F.2d 1223 (5th Cir. 1976)

United States v. Taylor, 554 F.2d 200 (5th Cir. 1977)

United States v. Daly, 716 F.2d 1499 (9th Cir. 1983)

The excusing of a prospective juror for cause must be based on a trial court’s

finding of actual or implied bias.

Government of Virgin Islands v. Felix, 569 F.2d 1274 (3d Cir. 1978)

The preferable practice is for the trial court to permit counsel to present

their challenges for cause in writing or, if oral, outside the hearing of the

prospective jurors. The prospective jurors should not be able to overhear

the challenges for cause.

2. Peremptory challenges

Counsel may, in the court’s discretion, be required to exercise their peremptory challenges simultaneously rather than alternately.

Pointer v. United States, 151 U.S. 396 (1894)

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)

United States v. Sarris, 632 F.2d 1341 (5th Cir. 1980)

United States v. Roe, 670 F.2d 956 (11th Cir. 1982)

When there are multiple defendants, the court may in its discretion award

additional challenges to the defendants.

United States v. Harris, 542 F.2d 1283 (7th Cir. 1976)
Part II. Jury 19

The award of additional peremptories to the defendants is permissible, not

mandatory.

United States v. McClendon, 782 F.2d 785 (9th Cir. 1986)

3. Separation of jury

It is within the discretion of the trial court to permit deliberating jurors to

separate overnight.

United States v. Arciniega, 574 F.2d 931 (7th Cir. 1978)

United States v. Carter, 602 F.2d 799 (7th Cir. 1979)

Powell v. Spalding, 679 F.2d 163 (9th Cir. 1982)

It is essential to a fair trial—civil or criminal—that a jury be cautioned as to

permissible conduct and conversations outside the jury room. Such an admonition is particularly needed before jurors separate at night, when they

will converse with friends and relatives. It is fundamental that the jurors be

cautioned from the beginning of a trial and generally throughout to keep

their considerations confidential and to avoid suggestions offered by outsiders.

United States v. Williams, 635 F.2d 744 (8th Cir. 1980)

If the court permits jurors to separate overnight, it should interrogate jurors the next day to be sure that each has abided by the court’s instructions

to refrain from talking to anyone about the case and from reading or hearing anything about the case.

United States v. Piancone, 506 F.2d 748 (3d Cir. 1974)

The decision to sequester a jury is within the trial court’s discretion.

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (court can sequester

jury even over defense’s objection)

The trial court may sequester the jury during trial if some event occurs that

causes the court to want to avoid the risk that the jury might become exposed to some prejudicial influence if not sequestered.

United States v. Robinson, 503 F.2d 208 (7th Cir. 1974)

Sequestration is, however, the most burdensome of tools for ensuring a fair

trial. It should be ordered only if no other means is available or effective.

Mastrian v. McManus, 554 F.2d 813 (8th Cir. 1977)

4. Simultaneous use of two juries

When certain testimony is admissible against one codefendant but not

against the other, the two codefendants may be tried simultaneously before

two different juries. Only the jury trying the codefendant against whom the

testimony is admissible will hear that testimony.
20 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)

United States v. Hanigan, 681 F.2d 1127 (9th Cir. 1982)

United States v. Lewis, 716 F.2d 16 (D.C. Cir. 1983)

Smith v. De Robertis, 758 F.2d 1151 (7th Cir. 1985)

If multiple juries are used, the trial judge should carefully explain to them

their functions and instruct them particularly not to talk about the case to

anyone in the other jury.

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)

5. Anonymous jury

The court may withhold jurors’ names and addresses and other personal

information if necessary to protect the jurors’ safety and to guard against

jury tampering.

United States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988)

United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992)

United States v. Ross, 33 F.3d 1507 (11th Cir. 1994)

United States v. Wong, 40 F.3d 1347 (2d Cir. 1994)

United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995)

6. Release of juror names and addresses

A capital defendant is entitled to receive a list of the veniremembers and

their addresses at least three days before trial commences unless the court

finds by a preponderance of the evidence that providing the list “may jeopardize the life or safety of any person.”

18 U.S.C. § 3432 (2001)

There is a diversity of practice throughout the nation regarding release of

juror names and addresses to the public, but some circuits have ruled that

the news media are entitled to names and addresses of jurors, alternates,

and veniremembers.

In re Baltimore Sun Co., 841 F.2d 74 (4th Cir. 1988)

In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990)

United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (court must articulate in the

record specific findings as to compelling reasons for sealing jury voir dire

transcript)

7. Appointment of foreperson by court

A judge’s selection of a jury foreperson raises the potential for “unwanted

and unintended appearances.” Because the utility of the practice may be

outweighed by its potential for prejudice, it should be engaged in judiciously,

if at all.

United States v. Burton, 737 F.2d 439 (5th Cir. 1984)
Part II. Jury 21

8. Replacement of juror with alternate

The decision to replace a juror with an alternate juror is committed to the

discretion of the trial court.

United States v. Dominguez, 615 F.2d 1093 (5th Cir. 1980)

United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993)

A sitting juror may be replaced with an alternate for reasonable cause.

United States v. Moten, 564 F.2d 620 (2d Cir. 1977)

United States v. Dischner, 974 F.2d 1502 (9th Cir. 1992)

United States v. Warren, 973 F.2d 1304 (6th Cir. 1992)

The trial court may replace a juror whenever it is convinced that a juror’s

ability to perform his or her duty is impaired.

United States v. Smith, 550 F.2d 277 (5th Cir. 1977) (juror napping throughout

trial)

United States v. Armijo, 834 F.2d 132 (8th Cir. 1987) (juror involved in car accident)

A juror may be replaced because of illness, illness of a member of the juror’s

family, or family difficulties aggravated by jury service.

United States v. Brown, 571 F.2d 980 (6th Cir. 1978)

United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995)

A juror may be replaced if he or she is intoxicated.

United States v. Jones, 534 F.2d 1344 (9th Cir. 1976)

9. Substitution of alternate after deliberations have begun

Rule 23(b) of the Federal Rules of Criminal Procedure allows an elevenjuror verdict without the parties’ stipulation if the court finds that it is necessary to excuse a juror for just cause after the jury has begun deliberations.

Rule 23(b) is the preferred method of proceeding in circumstances in which

a juror must be excused after deliberations have begun.

United States v. Gambino, 788 F.2d 938 (3d Cir. 1986)

United States v. Scopo, 861 F.2d 339 (2d Cir. 1988)

United States v. Acker, 52 F.3d 509 (4th Cir. 1995)

United States v. Chorney, 63 F.3d 78 (1st Cir. 1995)

Proceeding with a jury of eleven over the defendant’s objection is an unusual step, and the equities must be sufficiently compelling to support that

decision.

United States v. Araujo, 62 F.3d 930 (7th Cir. 1995) (juror’s problem with automobile not sufficiently compelling)

United States v. Spence, 163 F.3d 1280 (11th Cir. 1998) (no just cause to proceed

with eleven jurors when record shows likelihood that jurors could return the

next day)
22 Manual on Recurring Problems in Criminal Trials, fifth edition

Rule 24(c) of the Federal Rules of Criminal Procedure, as amended in 1999,

provides that the court has discretion to retain alternate jurors during deliberations. The court must ensure that the alternates do not discuss the

case with any other person. If an alternate replaces a juror, the court shall

instruct the jury to begin deliberations anew.

See United States v. Olano, 507 U.S. 725 (1993), and United States v. Houlihan, 92

F.3d 1271 (1st Cir. 1996), cited in the history of the 1999 amendments.

Under Rule 606(b) of the Federal Rules of Evidence, a court can only determine whether an alternate participated in deliberations or remained a silent observer. Once the final verdict has been rendered, a court cannot determine the extent of an alternate’s influence.

United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998)

Some courts have held that, with the express, knowing, and intelligent consent of the defendant, a disabled deliberating juror may be replaced by an

alternate. The jurors must be instructed to commence their deliberations

anew.

United States v. Baccari, 489 F.2d 274 (10th Cir. 1973)

United States v. Evans, 635 F.2d 1124 (4th Cir. 1980)

United States v. Kaminski, 692 F.2d 505 (8th Cir. 1982)

United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992)

United States v. McFarland, 34 F.3d 1508 (9th Cir. 1994)

The Second Circuit has ruled that there are circumstances in which an alternate may be substituted for a regular juror after the jury has commenced

its deliberations.

United States v. Hillard, 701 F.2d 1052 (2d Cir. 1983)

But see United States v. Stratton, 779 F.2d 820 (2d Cir. 1985) (“Compared to the

risks accepted in Hillard, the decision here to accept an eleven-juror verdict

was the more prudent course.”)

If the record evidence discloses any possibility that a juror’s request to be

excused after deliberations have begun stems from the juror’s view that the

government’s evidence is insufficient, the court must deny the request.

Moreover, the court may not dismiss the juror under Federal Rule of Criminal Procedure 23(b) and proceed with eleven jurors. The court may not

inquire closely into the juror’s motivations in such a case because such inquiry may compromise the secrecy of the deliberations.

United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987)

United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (adopting Brown rule)

A juror may not be removed from a deliberating jury in order to avoid a

hung jury.

United States v. Hernandez, 862 F.2d 17 (2d Cir. 1988)
Part II. Jury 23

10. Temporary disability of deliberating juror

If during deliberations a juror should become temporarily incapacitated, it

is permissible to suspend the deliberations for a short time in order to permit the possible recovery of the juror.

United States v. Hall, 536 F.2d 313 (10th Cir. 1976)

Clemmons v. Sowders, 34 F.3d 352 (6th Cir. 1994) (permissible to postpone

sentencing phase of trial for a few weeks)

The Ninth Circuit has held that it is permissible to recess a trial for eleven

days, after the presentation of evidence has concluded but before the commencement of closing arguments, because of the illness of one juror.

United States v. Diggs, 649 F.2d 731 (9th Cir. 1981)

But see United States v. Hay, 122 F.3d 1233 (9th Cir. 1997) (forty-eight-day recess is abuse of discretion)

11. Communications between trial court and jury

Federal Rule of Criminal Procedure 43(a) requires that a defendant be

present “at every stage of the trial including . . . the return of the verdict,”

unless the exceptions of Rule 43(b) or (c) apply. Compliance with this rule

requires that the trial court respond to an inquiry from the jury only in

open court, after revealing its contents to counsel and giving counsel an

opportunity to be heard on the matter.

Shields v. United States, 273 U.S. 583 (1927)

Rogers v. United States, 422 U.S. 35 (1975)

United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975)

United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977)

United States v. Rapp, 871 F.2d 957 (11th Cir. 1989)

United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998)

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

It is error for the trial court to communicate with the jury outside of the

presence of the defendant.

Shields v. United States, 273 U.S. 583 (1927)

Rogers v. United States, 422 U.S. 35 (1975)

United States v. Nelson, 570 F.2d 258 (8th Cir. 1978)

United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981) (actual communications

are subject to the harmless error rule)

United States v. Smith, 31 F.3d 469 (7th Cir. 1994)

United States v. Throckmorton, 87 F.3d 1069 (9th Cir. 1996)

United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998)

But see United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) (defendant did not

object to in camera ex parte interviews)

It is error for the trial judge to confer with the foreperson of a jury outside
24 Manual on Recurring Problems in Criminal Trials, fifth edition

of the presence of counsel and the defendant. In United States v. United

States Gypsum Co., 438 U.S. 422, 460 (1978), the foreperson requested, and

was accorded, a conference with the trial judge in order to describe all of

the difficulties that he was having with the deliberating jurors and to seek

further guidance from the court. The court held the following:

Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error.

. . . First, it is difficult to contain, much less to anticipate, the direction the

conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the judge’s

subjective personal views which have no place in his instruction to the

jury—all the more so when counsel are not present to challenge the statements. Second, any occasion which leads to communications with the

whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith

of the participants.

Only the trial judge should respond to a jury inquiry. A magistrate judge

may not respond to a jury inquiry.

United States v. De La Torre, 605 F.2d 154 (5th Cir. 1979)

The court clerk may not respond to a jury inquiry.

United States v. Patterson, 644 F.2d 890 (1st Cir. 1981)

The court should immediately notify counsel of any communication it receives from any juror.

United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977)

United States v. Rapp, 871 F.2d 957 (11th Cir. 1989)

United States v. Maraj, 947 F.2d 520 (1st Cir. 1991)

United States v. Scisum, 32 F.3d 1479 (10th Cir. 1994)

The trial court enjoys broad discretion in responding to jury questions generally and especially in deciding whether to provide requested testimony

either in written form or as read by the court reporter.

United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995)

The court should not answer questions from the jury informally in the form

of a colloquy between the court and the foreperson but rather should respond in a formal way so that the defendant has adequate opportunity to

evaluate the propriety of the proposed response or supplemental instruction and to formulate objections or suggest a different response.

United States v. Artus, 591 F.2d 526 (9th Cir. 1979)

United States v. Ronder, 639 F.2d 931 (2d Cir. 1981)

A trial court’s ex parte questioning of a juror about impartiality did not

violate the defendant’s right of due process or confrontation because the
Part II. Jury 25

defendant failed to object despite knowledge that the conference was occurring.

United States v. Olano, 62 F.3d 1180 (9th Cir. 1995)

In responding to a jury’s request for clarification on a charge, the court’s

duty is simply to respond to the jury’s apparent source of confusion fairly

and accurately without creating prejudice, and the particular words chosen

are left to the court’s discretion.

United States v. Smith, 62 F.3d 641 (4th Cir. 1995)

Juror questions about the meaning of terms should be settled by the court

after consulting with counsel.

United States v. Kupau, 781 F.2d 740 (9th Cir. 1986)

In its response to an inquiry, the trial court must be sure that it is not in

effect making a finding of fact, since the jury may not enlist the court as a

partner in the fact-finding process.

United States v. Walker, 575 F.2d 209 (9th Cir. 1978)

When a jury makes explicit its difficulties with the court’s instructions, the

court is obligated to clear away those difficulties “with concrete accuracy.”

It should not simply repeat its earlier instructions.

Bollenbach v. United States, 326 U.S. 607 (1946)

United States v. Walker, 557 F.2d 741 (10th Cir. 1977)

United States v. Combs, 33 F.3d 667 (6th Cir. 1994)

United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)

A jury is presumed to follow its instructions and to understand a judge’s

answer to its question.

Armstrong v. Toler, 24 U.S. 258 (1826)

Richardson v. Marsh, 481 U.S. 200 (1987)

Weeks v. Angelone, 120 S. Ct. 727 (2000)

If the court gives an additional instruction, it should remind the jury of the

prior instructions and advise the jury to consider the instructions as a whole.

United States v. L’Hoste, 609 F.2d 796 (5th Cir. 1980)

Written instructions should not be sent to the jury without notice to counsel and an opportunity to object.

Fillipon v. Albion Vein Slate Co., 250 U.S. 76 (1919)

12. Juror misconduct or bias

The scope of an investigation into juror misconduct is within the court’s

discretion.

United States v. Fryar, 867 F.2d 850 (5th Cir. 1989)

United States v. Copeland, 51 F.3d 611 (6th Cir. 1995)
26 Manual on Recurring Problems in Criminal Trials, fifth edition

The court should, if possible, conceal the identity of the party that instigated the inquiry.

United States v. Doe, 513 F.2d 709 (1st Cir. 1975)

When faced with a claim of juror misconduct, the court must conduct an

investigation to ascertain whether the alleged misconduct actually occurred.

The court must then determine whether the alleged misconduct has so prejudiced the defendant that he or she cannot receive a fair trial.

United States v. Mirkin, 649 F.2d 78 (1st Cir. 1981)

United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981)

United States v. Estrada, 45 F.3d 1215 (8th Cir. 1995)

The hearing regarding juror misconduct may be held in camera. Circuits

disagree over whether it must be in the presence of counsel and the defendant.

United States v. Powell, 512 F.2d 766 (8th Cir. 1975)

Wheel v. Robinson, 34 F.3d 60 (2d Cir. 1994)

In conducting the hearing, the trial court must be careful not to magnify

the possible wrong.

United States v. Powell, 512 F.2d 766 (8th Cir. 1975)

United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977)

The purpose of the hearing is to determine if even one juror is unduly biased or prejudiced so as to deny the defendant the right to an impartial

panel.

United States v. Hendrix, 549 F.2d 1225 (9th Cir. 1977)

Counsel may not withhold knowledge of misconduct until after the jury

starts deliberating and then have a motion for mistrial sustained.

United States v. Widgery, 636 F.2d 200 (8th Cir. 1980)

13. Outside contact with jurors

In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court ruled

that any private, off-the-record contact with a juror raises a presumption of

prejudice to the defendant. The Remmer Court stated that the government

bears the heavy burden of proving that any such contact was harmless to

the defendant. The Court supplemented its holding in a second Remmer

decision in which it admonished that a court must examine the “entire picture,” including the factual circumstances and impact on the juror.

Remmer v. United States, 350 U.S. 377 (1956)

However, in Smith v. Phillips, 455 U.S. 209 (1982), after referring to Remmer’s

presumptive-prejudice standard, the Supreme Court stated that the rem-
Part II. Jury 27

edy for “allegations of juror partiality is a hearing in which the defendant

has the opportunity to prove actual bias.”

Id. at 215. See also Rushen v. Spain, 464 U.S. 114 (1983)

The D.C. and Fifth Circuits have held that United States v. Olano, 507 U.S.

725 (1993), reconfigured Remmer, requiring the court to “inquire whether

a particular intrusion showed enough of a likelihood of prejudice to justify

assigning the government a burden of proving harmlessness.”

United States v. Williams-Davis, 90 F.3d 490 (D.C. Cir. 1996)

United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998)

But see United States v. Gartmon, 146 F.3d 1015 (D.C. Cir. 1998) (court “need

not resolve the tension” in its cases regarding Remmer presumption)

But the Ninth Circuit has ruled that, even in view of Olano, the Remmer

presumption must be applied in jury-tampering cases.

United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999)

The Sixth and Ninth Circuits have held that under Phillips, the defendant

has the burden of showing that prejudice has resulted from unauthorized

juror contact.

United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988)

United States v. Madrid, 842 F.2d 1090 (9th Cir. 1988)

But see United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999) (Remmer presumption applies in jury-tampering cases)

See also Neron v. Tierney, 841 F.2d 1197 (1st Cir. 1988) (“Neron was given the

essential ‘opportunity to prove actual bias’ at an evidentiary hearing.”); United

States v. Boylan, 898 F.2d 230 (1st Cir. 1990) (“Remmer standard should be

limited to cases of significant ex parte contacts with sitting jurors.”)

But see United States v. Littlefield, 752 F.2d 1429 (9th Cir. 1985) (“Recent decisions from a number of circuits, and the Supreme Court’s reliance in Phillips

on Remmer, point clearly to the continued vitality of the rule that the government must bear the burden of proof in showing that jury partiality was harmless.”)

Other circuits continue to hold that the government has the burden of showing that the defendant was not prejudiced by any improper juror contact.

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), overruled on other grounds

by United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992)

United States v. Hillard, 701 F.2d 1052 (2d Cir. 1983)

Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984)

United States v. Delaney, 732 F.2d 639 (8th Cir. 1984)

United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986)

United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)

Stockton v. Virginia, 852 F.2d 740 (4th Cir. 1988)

United States v. Scisum, 32 F.3d 1479 (10th Cir. 1994)

See United States v. Posada-Rios, 158 F.3d 852 (5th Cir. 1998) (Phillips does not

require a full-blown evidentiary hearing in every instance of outside influence)
28 Manual on Recurring Problems in Criminal Trials, fifth edition

The Fourth Circuit has held that the proof must establish that there is no

reasonable possibility that the verdict was affected by the contact.

Stephens v. South Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988)

United States v. Cheek, 94 F.3d 136 (4th Cir. 1996)

It is not an abuse of discretion for a judge to exclude defense counsel from

a preliminary inquiry to determine the validity of allegations of jury tampering.

United States v. DeLeon, 187 F.3d 60 (1st Cir. 1999)

If the trial court becomes aware that someone has made improper contact

with a juror, the court should hold a Remmer hearing, with all interested

parties permitted to participate, to determine the circumstances, the impact thereof on the juror, and whether the contact was prejudicial.

Winters v. United States, 582 F.2d 1152 (7th Cir. 1978)

United States v. Gigax, 605 F.2d 507 (10th Cir. 1979)

United States v. Myers, 626 F.2d 365 (4th Cir. 1980)

United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)

United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)

United States v. Herndon, 156 F.3d 629 (6th Cir. 1998)

But see United States v. Edwards, 188 F.3d 230 (4th Cir. 1999) (neither Remmer

nor Phillips requires presence of counsel during juror interrogation)

At the hearing, the court should determine whether the juror has discussed

the incident with other jurors.

United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)

United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988)

United States v. Angiulo, 897 F.2d 1169 (1st Cir. 1990)

The court should confer with counsel with respect to the procedure to be

followed and the possible replacement of the juror. The court has the discretion to interrogate or not to interrogate all of the other jurors to ascertain whether any one of them has been tainted by the improper contact.

United States v. Brown, 571 F.2d 980 (6th Cir. 1978)

United States v. Adams, 799 F.2d 665 (11th Cir. 1986)

United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987)

Exposure of the jury during deliberations to transcripts that include portions of videotaped testimony deemed inadmissible at trial requires the

holding of a Remmer hearing to allow the defendants to inquire into the

jurors’ states of mind.

United States v. Walker, 1 F.3d 423 (6th Cir. 1993)

If a juror engages in conversation with a witness during a recess, the preferable procedure is to substitute an alternate for that juror.

United States v. Bohr, 581 F.2d 1294 (8th Cir. 1978)
Part II. Jury 29

It is reversible error to have a deputy marshal and an FBI agent play a tape

for the jury in the jury room after deliberations have begun. Jury proceedings must be free from the danger of improper influence by an interested

party.

United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980)

Contra United States v. Kupau, 781 F.2d 740 (9th Cir. 1986); Lee v. Marshall, 42

F.3d 1296 (9th Cir. 1994)

14. Jurors seeing defendant in handcuffs

If jurors inadvertently see the defendant in handcuffs, the court should give

an instruction to the jury that no inferences are to be drawn from the fact

that the defendant is in handcuffs.

Dupont v. Hall, 555 F.2d 15 (1st Cir. 1977)

United States v. Halliburton, 870 F.2d 557 (9th Cir. 1989)

But see United States v. Rutledge, 40 F.3d 879 (7th Cir. 1994), reversed on other

grounds, 517 U.S. 1292 (1990) (no instruction required where defendant refused it)

It must be assumed that jurors would understand and follow a proper instruction that handcuffing of a person in custody for transportation to and

from the courtroom is a reasonable precaution that in no way reflects on

the presumption of innocence.

Wright v. Texas, 533 F.2d 185 (5th Cir. 1976)

If the court requires a defendant to wear physical restraints in the presence

of the jury, the judge must impose no greater restraints than necessary and

must take steps to minimize prejudice resulting from the presence of restraints.

Hameed v. Mann, 57 F.3d 217 (2d Cir. 1995)

See also Rhoden v. Rowland, 172 F.3d 633 (9th Cir. 1999)

As a matter of due process, shackling at the penalty phase of a capital trial is

forbidden unless it serves an essential state interest and no lesser alternative

will suffice.

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)

See infra at 74.

15. Note taking by jurors

It is within the court’s discretion to provide notebooks and pencils to jurors

and to permit note taking.

United States v. Riebold, 557 F.2d 697 (10th Cir. 1977)

United States v. Anthony, 565 F.2d 533 (8th Cir. 1977)
30 Manual on Recurring Problems in Criminal Trials, fifth edition

If note taking is permitted, jurors should be instructed that their notes are

only aids to memory and should not be given precedence over their own

independent recollection of the facts, and that they must not allow their

note taking to distract their attention from the proceedings.

United States v. Maclean, 578 F.2d 64 (3d Cir. 1978)

United States v. Oppon, 863 F.2d 141 (1st Cir. 1988)

United States v. Wild, 47 F.3d 669 (4th Cir. 1995)

A court may permit jurors to take notes for their personal use during trial,

but forbid their use during deliberations.

Clemmons v. Sowders, 34 F.3d 352 (6th Cir. 1994)

16. Jury questioning of witnesses

Questioning of witnesses by jurors in open court is disapproved. If questioning by jurors is to be permitted, the questions should be submitted in

writing. If the judge finds the questions to be proper, the judge may pose

the questions in their original form or may restate them.

United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986)

United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993)

United States v. Stierwalt, 16 F.3d 282 (8th Cir. 1994)

United States v. Bush, 47 F.3d 511 (2d Cir. 1995)

United States v. Feinberg, 89 F.3d 333 (7th Cir. 1996)

United States v. Hernandez, 176 F.3d 719 (3d Cir. 1999)

Courts may not exercise their discretion to allow questioning of witnesses

by jurors without regard to balancing the potential benefits and disadvantages of juror questioning. The disfavored practice should be allowed only

in “extraordinary or compelling circumstances.”

United States v. Ajmal, 67 F.3d 12 (2d Cir. 1995)

17. Rereading testimony

In general, the rereading of testimony is disfavored because of the emphasis

it places on specific testimony.

United States v. Nolan, 700 F.2d 479 (9th Cir. 1983)

United States v. Binder, 769 F.2d 595 (9th Cir. 1985) (videotaped testimony)

When a jury requests the reading of certain testimony, it is error to deny

that request without consulting counsel.

United States v. Birges, 723 F.2d 666 (9th Cir. 1984)

United States v. Holmes, 863 F.2d 4 (2d Cir. 1988)

The court should take into consideration the reasonableness of the request

and the difficulty of complying with it.

United States v. Almonte, 594 F.2d 261 (1st Cir. 1979)
Part II. Jury 31

The court did not abuse its discretion in denying the jury’s request to read

back a portion of the transcripts when two defendants might have benefited and three might have been harmed.

United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995)

The court may have the court reporter read to the jurors portions of the

testimony of a witness. Any such request must be disclosed to counsel and

their comments solicited before any testimony is read.

Government of Canal Zone v. Scott, 502 F.2d 566 (5th Cir. 1974)

United States v. King, 552 F.2d 833 (9th Cir. 1976)

United States v. Pimental, 645 F.2d 85 (1st Cir. 1981)

United States v. Zarintash, 736 F.2d 66 (3d Cir. 1984)

A notation that counsel was notified that testimony would be read back to

the jury did not constitute a waiver of the defendant’s right to be present

during read-back.

Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995), overruled on other grounds by

Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999)

A judge’s absence from the courtroom during read-back of testimony is not

prejudicial or in error.

United States v. Grant, 52 F.3d 448 (2d Cir. 1995)

However, a judge’s absence and unavailability during read-back, which was

granted by the judge’s law clerk, coupled with the judge’s failure to rule on

whether a victim’s direct examination should have been read back to the

jury, violated due process.

Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995)

When the trial court makes the discretionary decision to have a portion of

a witness’s testimony reread to the jury, the court should state on the record,

before the rereading, exactly what portion of the testimony is to be reread.

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)

There are circumstances under which it is not an abuse of discretion to

allow a jury to review a transcript during deliberations.

United States v. Lujan, 936 F.2d 406 (9th Cir. 1991)

If the jury is allowed to review a transcript, the court must take adequate

precautions to ensure that the jury does not unduly emphasize that testimony.

United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994)

United States v. Rodgers, 109 F.3d 1138 (9th Cir. 1997) (court’s failure to give

cautionary instruction was not plain error in this case)

It is within the trial court’s discretion to allow tapes of recorded conver-
32 Manual on Recurring Problems in Criminal Trials, fifth edition

sations to be replayed at the request of a deliberating jury. Transcripts of

the tapes may be used as listening aids.

United States v. Koska, 443 F.2d 1167 (2d Cir. 1971)

United States v. Turner, 528 F.2d 143 (9th Cir. 1975)

United States v. Williams, 548 F.2d 228 (8th Cir. 1977)

United States v. Dorn, 561 F.2d 1252 (7th Cir. 1977), overruled on other grounds

by United States v. Read, 658 F.2d 1236 (7th Cir. 1981)

United States v. Zepeda-Santana, 569 F.2d 1386 (5th Cir. 1978)

United States v. Scaife, 749 F.2d 338 (6th Cir. 1984) (tapes may be replayed provided they have been admitted as exhibits)

The defendant, his or her counsel, and the judge must be present when

tapes are replayed.

United States v. Brown, 832 F.2d 128 (9th Cir. 1987)

The trial court has discretion to permit the replaying of videotaped testimony. Videotaped testimony is unique, however. It serves as the functional

equivalent of a live witness, and for that reason may be given undue emphasis by the jury if replayed. When replaying is allowed, the videotape must

be played in its entirety, in open court, and with counsel present.

United States v. Sacco, 869 F.2d 499 (9th Cir. 1989)

Exposure of the jury during deliberations to transcripts that include portions of videotaped testimony deemed inadmissible at trial requires the

holding of a Remmer hearing to allow the defendant to inquire into the

jurors’ states of mind.

United States v. Walker, 1 F.3d 423 (6th Cir. 1993)

See infra at 90–91.

18. Sending exhibits and other items to jury room

It is within the discretion of the trial court to allow exhibits that have been

admitted into evidence to be sent to the jury room.

United States v. Foster, 815 F.2d 1200 (8th Cir. 1987)

The trial court may in its discretion send all or part of the admitted exhibits

to the jury room before or after the jurors have begun their deliberations.

United States v. De Hernandez, 745 F.2d 1305 (10th Cir. 1984)

A defendant is entitled to a new trial when extrinsic evidence is introduced

into the jury room, unless there is no reasonable possibility that the jury’s

verdict was influenced by material that improperly came before it.

United States v. Ruggiero, 56 F.3d 647 (9th Cir. 1995)

United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996)
Part II. Jury 33

In its discretion the court may permit properly authenticated transcripts of

recorded conversations or witnesses’ testimony to be taken to the jury room.

United States v. Koska, 443 F.2d 1167 (2d Cir. 1971)

United States v. Rengifo, 789 F.2d 975 (1st Cir. 1986)

United States v. Ulerio, 859 F.2d 1144 (2d Cir. 1988) (English translations of

conversations recorded in Spanish)

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994)

United States v. Escotto, 121 F.3d 81 (2d Cir. 1997)

The court may permit drugs admitted as evidence in trial to be sent to the

jury room.

United States v. De la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995)

It is error to send a dictionary to the jury room at the request of the jurors

without consulting counsel. Questions or disputes as to the meaning of

terms are to be settled by the court rather than by jurors’ reference to a

dictionary.

United States v. Kupau, 781 F.2d 740 (9th Cir. 1986)

Evidence that has been admitted only for illustrative purposes during trial

is not to go into the jury room. Illustrative evidence is properly used as a

testimonial aid for a witness or as an aid to counsel during final argument.

It is not to be referred to by the jurors during deliberations.

United States v. Cox, 633 F.2d 871 (9th Cir. 1980)

If a transcript of a tape recording is to be used during deliberations, it should

be admitted into evidence; appropriate instructions regarding the jury’s use

of a transcript should be given.

United States v. Berry, 64 F.3d 305 (7th Cir. 1995)

Transcripts of tape recordings used to assist the jury when tapes are played

during trial may be sent to the jury room for the same purpose, absent any

showing that the transcripts are inaccurate or that specific prejudice will

result.

United States v. Brown, 872 F.2d 385 (11th Cir. 1989)

Exposure of the jury during deliberations to unredacted transcripts of videotaped testimony requires the holding of a Remmer hearing to allow the

defendant to inquire into the jurors’ states of mind.

United States v. Walker, 1 F.3d 423 (6th Cir. 1993)

Allowing the jury to see a case agent’s report containing a summary of his

investigation and his opinion that the defendant was guilty was inherently

prejudicial.

United States v. Harber, 53 F.3d 236 (9th Cir. 1995)
34 Manual on Recurring Problems in Criminal Trials, fifth edition

19. Sending copy of indictment to jury

It is within the court’s discretion to send a copy of the indictment to the

jury, but the court should consider whether doing so may prejudice the

defendant.

United States v. Wedelstedt, 589 F.2d 339 (8th Cir. 1978)

If a count has been dismissed or a particular count does not pertain to the

defendant on trial, the indictment should be retyped to eliminate the count

or counts for which the defendant is not being tried.

United States v. Gomez, 529 F.2d 412 (5th Cir. 1976)

If several defendants named in the indictment are not on trial or if parties

change during the course of the trial, the preferable practice is not to submit a copy of the indictment to the jury.

United States v. Maselli, 534 F.2d 1197 (6th Cir. 1976)

20. Deadlocked jury

If the court is advised that the jury has become deadlocked, the court should

not declare a mistrial until it has assured itself that the jury is hopelessly

deadlocked. It is not sufficient that the jury is currently deadlocked. The

court must determine whether there is a probability that the jury can reach

a verdict within a reasonable time or whether it is hopelessly deadlocked. It

is best to poll the jurors individually as to whether the jury is hopelessly

deadlocked. The questioning should be in open court. The court must not

question the jury as to its vote or as to the split of the vote.

United States v. See, 505 F.2d 845 (9th Cir. 1974)

The court should question the foreperson individually and the other jurors

either one by one or as a group.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

Regardless of what other specifics are included in an Allen charge, a district

court must incorporate into the charge a specific reminder to jurors in both

the minority and majority that they reconsider their positions in light of

the other side’s view. Failure to provide a sufficiently balanced charge is

reversible error.

United States v. Burgos, 55 F.3d 933 (4th Cir. 1995)

An Allen charge is helpful, and not coercive, when it only expresses encouragement to jurors to reach a verdict if possible, to avoid the expense

and delay of a new trial.

United States v. Melendez, 60 F.3d 41 (2d Cir. 1995)
Part II. Jury 35

A supplemental instruction that jurors should forget past conflict was not

coercive and did not suggest that a verdict was necessary or that jurors should

surrender conscientious positions in light of the views of other jurors.

United States v. Knight, 58 F.3d 393 (8th Cir. 1995)

See infra at 162-63.

21. Verdict

a. Polling the jury

Federal Rule of Criminal Procedure 31(d) provides as follows: “If the poll

reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.”

Although the rule permits the discharge of the jury, it is preferable to direct

the jury to retire for further deliberations, as that might obviate a retrial.

The verdict may not be accepted by the court if a poll of the jurors indicates

a lack of unanimity. The court should direct the jury to retire for further

deliberations or should dismiss the jury.

United States v. Brooks, 420 F.2d 1350 (D.C. Cir. 1969)

Sincox v. United States, 571 F.2d 876 (5th Cir. 1978)

United States v. Love, 597 F.2d 81 (6th Cir. 1979)

United States v. Morris, 612 F.2d 483 (10th Cir. 1979)

United States v. Chigbo, 38 F.3d 543 (11th Cir. 1994)

Rule 31(d) requires the court to poll jurors individually. The court has discretion as to how to conduct the poll.

A juror’s signature on the verdict form cannot substitute for an oral poll of

the jury in open court.

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

If, at the polling, the response of a particular juror is equivocal, the verdict

may not be received.

United States v. Smith, 562 F.2d 619 (10th Cir. 1977)

United States v. Freedson, 608 F.2d 739 (9th Cir. 1979)

But see United States v. Netter, 62 F.3d 232 (8th Cir. 1995), vacated on other

grounds, 517 U.S. 1130 (1996)

The Eleventh Circuit has held that once a single juror dissents from the

verdict, it is per se error to continue polling.

United States v. Spitz, 696 F.2d 916 (11th Cir. 1983)

But see United States v. Chigbo, 38 F.3d 543 (11th Cir. 1994)
36 Manual on Recurring Problems in Criminal Trials, fifth edition

The court may not inquire as to the reason for a juror’s dissent from the

announced verdict.

United States v. Nelson, 692 F.2d 83 (9th Cir. 1982)

It is reversible error for the court to inquire of the jurors as to their numerical division at any time prior to verdict. This is true even if the court

does not ask how the jury is divided.

Brasfield v. United States, 272 U.S. 448 (1926)

United States v. Noah, 594 F.2d 1303 (9th Cir. 1979)

Government of the Virgin Islands v. Romain, 600 F.2d 435 (3d Cir. 1979)

An unsolicited disclosure of the jury’s numerical division, however, is not a

ground for mistrial.

United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975)

United States v. Warren, 594 F.2d 1046 (5th Cir. 1979)

It is error for the court to set any time limitations on the jury’s deliberations or to suggest that the court is going to keep the jury deliberating until

a verdict is reached.

United States v. Amaya, 509 F.2d 8 (5th Cir. 1975)

If a verdict is reached after further deliberations, the trial court has discretion to determine whether the initially dissenting member of the jury

was coerced by the poll to capitulate to the views of the majority.

United States v. Brooks, 420 F.2d 1350 (D.C. Cir. 1969)

Amos v. United States, 496 F.2d 1269 (8th Cir. 1974)

United States v. Fiorilla, 850 F.2d 172 (3d Cir. 1988)

Even after a verdict is announced in court, jurors remain free to register

their dissents until the verdict is accepted by the court.

United States v. Taylor, 507 F.2d 166 (5th Cir. 1975)

A jury can be recalled for purposes of conducting a poll before its members

are actually dispersed.

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

If a poll is taken, the verdict becomes final and recorded when the twelfth

juror’s assent is made on the record.

United States v. Marinari, 32 F.3d 1209 (7th Cir. 1994)

b. Incorrect or unclear verdict

If, through inadvertence, an incorrect verdict form is signed, that error may

be corrected at once. Each juror must be polled as to the correct verdict.

United States v. Mears, 614 F.2d 1175 (8th Cir. 1980)
Part II. Jury 37

If a verdict is not in proper form or is for any reason unclear, the jury must

be sent back for further deliberations.

United States v. Thomas, 521 F.2d 76 (8th Cir. 1975)

United States v. Rastelli, 870 F.2d 822 (2d Cir. 1989)

c. Partial verdict

The court may accept a partial verdict on one or more counts of an indictment.

United States v. Ross, 626 F.2d 77 (9th Cir. 1980)

United States v. Benedict, 95 F.3d 17 (8th Cir. 1996)

If accepted, a partial verdict is not subject to revision by the jury.

United States v. Di Lapi, 651 F.2d 140 (2d Cir. 1981)

United States v. Dakins, 872 F.2d 1061 (D.C. Cir. 1989)

A jury should be neither encouraged to return nor discouraged from returning a partial verdict, but the jurors should be aware of their options.

United States v. Di Lapi, 651 F.2d 140 (2d Cir. 1981)

In a multidefendant case, Federal Rule of Criminal Procedure 31(b) permits the jury to return “a verdict or verdicts with respect to a defendant or

defendants as to whom it has agreed.”

d. Inconsistent verdict

The verdict of a jury need not be internally consistent. Consistency of the

verdict on separate counts is not required.

United States v. Haynes, 554 F.2d 231 (5th Cir. 1977)

United States v. Lichenstein, 610 F.2d 1272 (5th Cir. 1980)

United States v. Dakins, 872 F.2d 1061 (D.C. Cir. 1989)

United States v. Muthana, 60 F.3d 1217 (7th Cir. 1995)

United States v. Acosta, 67 F.3d 334 (1st Cir. 1995)

22. Interviewing of jurors after verdict

Federal courts do not look with favor on the interviewing of jurors after

verdict.

Smith v. Cupp, 457 F.2d 1098 (9th Cir. 1972)

United States v. Riley, 544 F.2d 237 (5th Cir. 1976)

King v. United States, 576 F.2d 432 (2d Cir. 1978)

United States v. Eldred, 588 F.2d 746 (9th Cir. 1978)

United States v. Kepreos, 759 F.2d 961 (1st Cir. 1985)
38 Manual on Recurring Problems in Criminal Trials, fifth edition

a. By counsel

It is not an abuse of discretion for a trial court to deny a motion by counsel

to interview jurors after verdict.

Parker v. Estelle, 558 F.2d 312 (5th Cir. 1977)

United States v. McNeal, 865 F.2d 1173 (10th Cir. 1989)

Posttrial interviews should be permitted only if there are reasonable grounds

to believe that a specific, nonspeculative impropriety has occurred that could

have prejudiced the defendant.

United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir. 1983)

United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)

The court has the power, and sometimes the duty, to order that all posttrial

interviews of jurors occur under its supervision.

King v. United States, 576 F.2d 432 (2d Cir. 1978)

United States v. Moten, 582 F.2d 654 (2d Cir. 1978)

The First Circuit has prohibited all postverdict interviews of jurors by counsel, litigants, or their agents except under the supervision of the district

court and then only in such extraordinary situations as are deemed appropriate.

United States v. Kepreos, 759 F.2d 961 (1st Cir. 1985)

b. By news media

Only under the most unusual circumstances is the court justified in directing jurors not to talk to representatives of the news media after verdict.

United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978)

Restrictions on posttrial media interviews with jurors must reflect an impending threat of jury harassment rather than the judge’s generalized misgivings about the wisdom of such interviews.

United States v. Antar, 38 F.3d 1348 (3d Cir. 1994)

23. Testimony by jurors that may impeach verdict

Federal Rule of Evidence 606(b) provides as follows:

[A] juror may not testify as to any matter or statement occurring during

the course of the jury’s deliberations or to the effect of anything upon that

or any other juror’s mind or emotions as influencing the juror to assent or

dissent from the verdict or indictment or concerning the juror’s mental

processes in connection therewith . . . nor may a juror’s affidavit or evidence of any statement by the juror . . . be received for these purposes.
Part II. Jury 39

The circuits are unanimous that Rule 606(b) “forbid[s] the questioning of

jurors concerning the impact of improper communications.”

Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914 (7th Cir. 1991)

The rule has also been construed to prohibit considering jurors’ statements

about the effect that information learned after the trial would have had on

their verdict.

United States v. Sjeklocha, 843 F.2d 485 (11th Cir. 1988)

The prohibition of Rule 606(b) applies at some point prior to discharge of

the jury.

United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996)

Rule 606(b) applies in cases in which a partial verdict has been recorded.

United States v. Hockridge, 573 F.2d 752 (2d Cir. 1978)

Juror testimony is admissible only if it relates to extraneous influences on

the deliberations.

United States v. Pimentel, 654 F.2d 538 (9th Cir. 1981)

United States v. Friedland, 660 F.2d 919 (3d Cir. 1981)

United States v. Schwartz, 787 F.2d 257 (7th Cir. 1986)

Extraneous influences include publicity received and discussed in the jury

room, consideration of evidence not admitted in court, and contacts between jurors and third parties, including contacts between jurors and the

trial judge outside the presence of the defendant and his or her counsel.

United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982)

The trial court should hold a posttrial jury hearing only when there is clear,

strong, substantial, and incontrovertible evidence that a specific,

nonspeculative impropriety has occurred which could have prejudiced the

trial of the defendant.

United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir. 1983)

United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)

The hearing should be conducted so as to minimize the intrusion on the

jury’s deliberations, and fact-finding should be limited to a determination

of the precise nature of the information proffered and the degree to which

that information was actually discussed or considered.

United States v. Calbas, 821 F.2d 887 (2d Cir. 1987)

The practice of getting affidavits from jurors to impeach their verdicts should

not be encouraged, as it is inherently intimidating.

United States v. Gutman, 725 F.2d 417 (7th Cir. 1984)
40 Manual on Recurring Problems in Criminal Trials, fifth edition

Part III

Disclosure Issues

A. Jencks Act Material

The Jencks Act is codified at 18 U.S.C. § 3500.

1. Production of government witness’s statements

The Jencks Act provides that statements of a government witness are discoverable by a defendant after that witness has testified on direct examination at trial.

The court may not compel the government to produce Jencks Act material

until after a witness has testified. Some U.S. attorneys will, however, voluntarily produce those materials prior to trial or, at the latest, on the first day

of trial.

United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)

United States v. Algie, 667 F.2d 569 (6th Cir. 1982)

United States v. White, 750 F.2d 726 (8th Cir. 1984)

Production of statements covered by the Jencks Act is not automatic. The

defendant must invoke the statute at the appropriate time.

United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

Only statements in the possession of the prosecutorial arm of the federal

government must be produced.

United States v. Trevino, 556 F.2d 1265 (5th Cir. 1977)

United States v. Cagnina, 697 F.2d 915 (11th Cir. 1983)

United States v. Molt, 772 F.2d 366 (7th Cir. 1985)

United States v. Capers, 61 F.3d 1100 (4th Cir. 1995)

United States v. Brazel, 102 F.3d 1120 (11th Cir. 1997)

Statements need not be in the possession of the U.S. Attorney’s Office to be

producible under the Jencks Act. Possession by any federal investigative

agency satisfies the requirement that the statement be in the possession of

the prosecutorial arm of the federal government.

United States v. Bryant, 448 F.2d 1182 (D.C. Cir. 1971)

United States v. Rippy, 606 F.2d 1150 (D.C. Cir. 1979)

United States v. Moeckly, 769 F.2d 453 (8th Cir. 1985)
Part III. Disclosure Issues 41

Presentence reports are not considered to be in the possession of the

prosecutorial arm of the federal government and are not producible “statements” under the Jencks Act.

See infra at 44.

Federal Rule of Criminal Procedure 26.2 extends disclosure requirements

to suppression and sentencing hearings, hearings to revoke or modify probation or supervised release, detention hearings, evidentiary hearings in 28

U.S.C. § 2255 proceedings, and preliminary examinations conducted under Federal Rule of Criminal Procedure 5.1. The rule also requires disclosure of prior relevant statements of defense witnesses in the possession of

the defense in essentially the same manner as disclosure of prior statements

of prosecution witnesses in the hands of the government.

2. Statement must relate to subject matter of government

witness’s testimony

After a government witness has testified on direct examination, the government must produce on request any statement of that witness in its possession that relates to the subject matter of the witness’s testimony. The

prosecution must produce only those statements that relate generally to the

events and activities testified to by the witness.

United States v. Mason, 523 F.2d 1122 (D.C. Cir. 1975)

United States v. Mackey, 571 F.2d 376 (7th Cir. 1978)

United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992)

United States v. Kelly, 35 F.3d 929 (4th Cir. 1994)

United States v. Neal, 36 F.3d 1190 (1st Cir. 1994)

The defendant is not entitled to a statement that does not relate to the subject matter of the witness’s testimony even though the statement does relate

to the subject matter of the indictment, information, or investigation.

United States v. Butenko, 384 F.2d 554 (3d Cir. 1967), vacated on other grounds by

Alderman v. United States, 394 U.S. 165 (1969)

A defendant seeking statements of government witnesses pursuant to the

Jencks Act must provide some foundation for his or her request before the

court is required to make an in camera inspection of the materials.

United States v. Boyd, 53 F.3d 631 (4th Cir. 1995)

If the government contends that a portion of the statement does not relate

to the testimony the witness gave on direct examination, the court shall

review the statement in camera and excise any portions of it that do not
42 Manual on Recurring Problems in Criminal Trials, fifth edition

relate to the direct testimony of the witness.

Anderson v. United States, 788 F.2d 517 (8th Cir. 1986)

United States v. Rivera Pedin, 861 F.2d 1522 (11th Cir. 1988)

3. Trial court must determine whether statement should

be produced under Jencks Act

The court may not simply rely on a prosecutor’s statement that undisclosed

material is not Jencks Act material. The court shall order the government to

deliver the material to court for inspection.

United States v. North American Reporting, Inc., 761 F.2d 735 (D.C. Cir. 1985)

United States v. Miller, 771 F.2d 1219 (9th Cir. 1985)

United States v. Allen, 798 F.2d 985 (7th Cir. 1986)

In determining whether a statement must be produced under the Jencks

Act, the trial court may review the statement at issue in camera. The court

may also conduct a hearing and interrogate witnesses or government representatives who might have knowledge of the statement.

Palermo v. United States, 360 U.S. 343 (1959)

Campbell v. United States, 365 U.S. 85 (1961)

United States v. Lamont, 565 F.2d 212 (2d Cir. 1977)

Anderson v. United States, 788 F.2d 517 (8th Cir. 1986)

If the government deletes any portion of a statement it produces, the trial

court must, on motion of the defendant, examine the deleted portion in

camera and make a determination as to whether the deletion was proper.

United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979)

United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)

United States v. Miller, 771 F.2d 1219 (9th Cir. 1985)

It is error for a trial judge who examines a lengthy document containing

potential Jencks Act statements in camera to refuse to review the document

in its entirety.

United States v. Washington, 797 F.2d 1461 (9th Cir. 1986) (diary)

United States v. Rivera Pedin, 861 F.2d 1522 (11th Cir. 1988) (diary)

4. Defense counsel must be given reasonable time to

review Jencks Act materials before cross-examining

witness

It is an abuse of discretion for the court not to grant defense counsel’s request for adjournment in order to have adequate time to examine Jencks

Act materials.

United States v. Holmes, 722 F.2d 37 (4th Cir. 1983)
Part III. Disclosure Issues 43

5. Statements producible under the Jencks Act

The Jencks Act defines a “statement” as

(1) a written statement made by said witness and signed or otherwise

adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, that is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the

making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if

any, made by said witness to a grand jury.

a. Notes of witness interviews

Notes taken by a government agent in interviewing a witness are producible

after the witness testifies if it appears that the notes were adopted or approved by the witness or that they were a substantially verbatim recital of

oral statements made by the witness.

Campbell v. United States, 373 U.S. 487 (1963)

Goldberg v. United States, 425 U.S. 94 (1976)

United States v. Finnigan, 504 F.2d 1355 (8th Cir. 1974)

United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975)

United States v. Smith, 31 F.3d 1294 (4th Cir. 1994)

United States v. Scotti, 47 F.3d 1237 (2d Cir. 1995)

If there is a question as to whether a statement is producible, the trial court

must hold a hearing and receive extrinsic evidence to determine whether

the interviewer read back the statement to the witness or permitted the

witness to read the statement. A general inquiry by the interviewer as to

whether he or she has correctly understood what the witness has said, followed by the witness’s affirmative response, does not constitute adoption

or approval of the notes.

Goldberg v. United States, 425 U.S. 94 (1976)

United States v. Judon, 567 F.2d 1289 (5th Cir. 1978)

United States v. Strahl, 590 F.2d 10 (1st Cir. 1978)

Notes of interviews do not fall within the Jencks Act if they contain only

occasional verbatim recitations of phrases used by the person interviewed.

Such notes do fall within the Jencks Act if they contain extensive verbatim

recitations.

Palermo v. United States, 360 U.S. 343 (1959)

United States v. Gantt, 617 F.2d 831 (D.C. Cir. 1980)

United States v. Martino, 648 F.2d 367 (5th Cir. 1981)

United States v. Neal, 36 F.3d 1190 (1st Cir. 1994)

United States v. Donato, 99 F.3d 426 (D.C. Cir. 1996)
44 Manual on Recurring Problems in Criminal Trials, fifth edition

Interview notes made by a government attorney in interviewing a government witness are producible only if those notes have been signed or

otherwise adopted or approved by the witness.

Goldberg v. United States, 425 U.S. 94 (1976)

United States v. Adams, 581 F.2d 193 (9th Cir. 1978)

United States v. Goldberg, 582 F.2d 483 (9th Cir. 1978)

United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995)

Discussions of the general substance of what the witness has said do not

constitute adoption or approval of the lawyer’s notes.

United States v. Adams, 581 F.2d 193 (9th Cir. 1978)

Interview notes made by government counsel and consisting of one-word

references and short phrases are not Jencks Act statements because they are

not substantially verbatim recitals.

United States v. Consolidated Packaging Corp., 575 F.2d 117 (7th Cir. 1978)

b. Reports by government agents

Reports that are not substantially verbatim recitals of oral statements are

not producible because they could be used to impeach witnesses on the

basis of statements that they did not actually make.

Palermo v. United States, 360 U.S. 343 (1959)

United States v. Judon, 581 F.2d 553 (5th Cir. 1978)

United States v. Mena, 863 F.2d 1522 (11th Cir. 1989)

A report made by a government agent, if pertaining to the subject matter of

the testimony of the government agent, is producible after the agent has

testified.

Clancy v. United States, 365 U.S. 312 (1961)

United States v. Sink, 586 F.2d 1041 (5th Cir. 1978)

United States v. Welch, 810 F.2d 485 (5th Cir. 1987)

The only parts of the report that are producible are those relevant to the

agent’s testimony at trial.

United States v. Mason, 523 F.2d 1122 (D.C. Cir. 1975)

Presentence reports are not producible “statements” under the Jencks Act.

United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976)

United States v. Trevino, 556 F.2d 1265 (5th Cir. 1977)

United States v. Bourne, 743 F.2d 1026 (4th Cir. 1984)

But see United States v. Sasser, 971 F.2d 470 (10th Cir. 1992)
Part III. Disclosure Issues 45

c. Grand jury testimony

Grand jury testimony relating to the in-court testimony of a witness must

be produced.

United States v. Knowles, 594 F.2d 753 (9th Cir. 1979)

6. Destruction of interview notes

There is a split among the circuits as to whether rough interview notes should

be preserved.

The Third, Ninth, and District of Columbia Circuits have held that these

notes must be preserved.

United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975)

United States v. Harris, 543 F.2d 1247 (9th Cir. 1976)

United States v. Vella, 562 F.2d 275 (3d Cir. 1977)

However, the Ninth Circuit has also held that not every type of rough note

need be preserved.

United States v. Bernard, 623 F.2d 551 (9th Cir. 1980)

United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981)

Several circuits have held that interview notes need not be preserved.

United States v. McCallie, 554 F.2d 770 (6th Cir. 1977)

United States v. Mase, 556 F.2d 671 (2d Cir. 1977)

United States v. Martin, 565 F.2d 362 (5th Cir. 1978)

United States v. Shovea, 580 F.2d 1382 (10th Cir. 1978)

United States v. Williams, 604 F.2d 1102 (8th Cir. 1979)

United States v. Bastanipour, 697 F.2d 170 (7th Cir. 1982)

United States v. Hinton, 719 F.2d 711 (4th Cir. 1983)

The circuits are split as to whether the destruction of interview notes calls

for any type of sanction.

United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978) (destruction was harmless error in this case)

United States v. Lieberman, 608 F.2d 889 (1st Cir. 1979) (sanctions may be imposed)

United States v. Gantt, 617 F.2d 831 (D.C. Cir. 1980) (sanctions left to discretion

of trial court)

United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) (sanctions not warranted

for destruction of handwritten draft of report of meeting)

United States v. Echeverry, 759 F.2d 1451 (9th Cir. 1985) (sanctions are within

the discretion of the trial court)

The government did not violate the Jencks Act by instructing agents to minimize note taking.

United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996)
46 Manual on Recurring Problems in Criminal Trials, fifth edition

B. Brady Material

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court ruled that the

suppression by the prosecution of evidence favorable to an accused, upon

request for disclosure by the accused, violates due process when the evidence is material to the guilt or punishment of the accused, irrespective of

the good faith or bad faith of the prosecution. The Court held in United

States v. Agurs, 427 U.S. 97 (1976), that failure to disclose material and favorable evidence violates due process even when the defendant makes no

request for the material.

While it is prudent for defense counsel to make a general request for Brady

material, the defendant’s failure to make any request does not relieve the

prosecution of its obligation to disclose evidence with an obviously exculpatory character.

Smith v. Secretary of N.M. Dept. of Corrections, 50 F.3d 801 (10th Cir. 1995)

The failure of law enforcement officers to preserve evidence that could have

potentially exculpated the defendant does not violate Brady or the Due Process Clause absent a showing that the officers acted in bad faith.

Arizona v. Youngblood, 488 U.S. 51 (1988) (semen specimens lost prior to

testing through negligence)

1. Materiality

Materiality is the touchstone in the determination of whether certain evidence qualifies as Brady material.

United States v. Agurs, 427 U.S. 97 (1976)

United States v. Bagley, 473 U.S. 667 (1985)

United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985)

United States v. Cortijo-Diaz, 875 F.2d 13 (1st Cir. 1989)

Barkauskas v. Lane, 878 F.2d 1031 (7th Cir. 1989)

United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989)

United States v. Robinson, 39 F.3d 1115 (10th Cir. 1994)

United States v. Newton, 41 F.3d 1422 (11th Cir. 1994)

United States v. Veksler, 62 F.3d 544 (3d Cir. 1995)

Materiality is determined by considering the suppressed evidence collectively rather than item by item.

United States v. Bagley, 473 U.S. 667 (1985)

Kyles v. Whitley, 514 U.S. 419 (1995)

A lower standard of materiality applies when there is prosecutorial misconduct and corruption of the truth-seeking function.

United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995)
Part III. Disclosure Issues 47

The duty to disclose Brady material is ongoing; information that may be

deemed immaterial upon original examination may become material as

the proceedings progress.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

2. Doubts to be resolved in favor of disclosure

When the government is in doubt as to the exculpatory nature of material,

the prosecutor either should disclose the material to the accused or should

submit it to the court for the court’s determination whether the material

should be disclosed to the accused.

United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982)

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

If, following a Brady request, the government has serious doubts as to the

usefulness of a particular piece of evidence to the defense, the government

should resolve all doubts in favor of full disclosure.

United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984)

3. Evidence bearing on credibility of government

witnesses

If a witness’s testimony may be determinative of the guilt or innocence of

the accused, Brady requires the disclosure of any evidence bearing on the

credibility of that witness.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

United States v. Boyd, 55 F.3d 239 (7th Cir. 1995)

Impeachment evidence that would tend to undermine the credibility of an

important government witness falls within the Brady rule.

Giglio v. United States, 405 U.S. 150 (1972)

United States v. Bagley, 473 U.S. 667 (1985)

Barkauskas v. Lane, 878 F.2d 1031 (7th Cir. 1989)

Wilson v. Whitley, 28 F.3d 433 (5th Cir. 1994)

United States v. Kelly, 35 F.3d 929 (4th Cir. 1994)

United States v. Duke, 50 F.3d 571 (8th Cir. 1995)

United States v. Payne, 63 F.3d 1200 (2d Cir. 1995)

United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

4. Court under no duty to search files of prosecutor

Speculation that the government may possess Brady material does not require the court to direct production of government files for an in camera

search by the court.

United States v. Michaels, 796 F.2d 1112 (9th Cir. 1986)
48 Manual on Recurring Problems in Criminal Trials, fifth edition

The trial court has no obligation to conduct a general Brady search of a

prosecutor’s files when the prosecutor has assured the court that all possibly exculpatory material has been produced.

United States v. Holmes, 722 F.2d 37 (4th Cir. 1983)

However, when the prosecutor submits material to the court for a Brady

determination, the court has an obligation to examine the material in camera and determine whether disclosure to the defense is required.

In re Storer Communications, Inc., 828 F.2d 330 (6th Cir. 1987)

Under certain circumstances the court should undertake an in camera investigation rather than accept the government’s assurance that there are no

Brady material or that contested materials are not exculpatory under Brady.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

United States v. Gaston, 608 F.2d 607 (5th Cir. 1979)

United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980)

United States v. Leung, 40 F.3d 577 (2d Cir. 1994)

Defense counsel is not entitled to review the government’s files in search of

materials that arguably fall within the scope of Brady.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

5. Timing of disclosure of Brady material

The district court may order when Brady material is to be disclosed.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

Some decisions have held that the Jencks Act controls and that Brady material relating to a certain witness need not be disclosed until that witness

has testified on direct examination at trial.

United States v. Scott, 524 F.2d 465 (5th Cir. 1975)

United States v. Jones, 612 F.2d 453 (9th Cir. 1979)

United States v. Bencs, 28 F.3d 555 (6th Cir. 1994)

Other decisions have held that Brady material must be disclosed prior to

trial, in order to afford the defendant the opportunity to make effective use

of it during trial.

United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976)

United States v. Kaplan, 554 F.2d 577 (3d Cir. 1977)

United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)

United States v. Perez, 870 F.2d 1222 (7th Cir. 1989)

Brady information that will require defense investigation or more extensive

defense preparation for trial should be disclosed at an early stage of the

case.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)
Part III. Disclosure Issues 49

If the court declines to order the disclosure of certain material, that material should be sealed and made a part of the record on appeal.

United States v. Gaston, 608 F.2d 607 (5th Cir. 1979)

6. Brady applicable only to material available to the

prosecution

Brady material is limited to information known to the prosecutor and unknown to the defense.

United States v. Agurs, 427 U.S. 97 (1976)

Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985)

United States v. Salerno, 868 F.2d 524 (2d Cir. 1989)

Armco, Inc. v. United States EPA, 869 F.2d 975 (6th Cir. 1989)

United States v. O’Conner, 64 F.3d 355 (8th Cir. 1995)

Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995)

The prosecutor has a duty to learn of any evidence favorable to the defendant which is known to others acting on the government’s behalf in the

case, including the police.

Kyles v. Whitley, 514 U.S. 419 (1995)

United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

United States v. Payne, 63 F.3d 1200 (2d Cir. 1995)

The prosecutor need not search the files of the state police.

United States v. Escobar, 674 F.2d 469 (5th Cir. 1982)

The prosecutor need not seek out material that is not in the government’s

control.

United States v. Walker, 559 F.2d 365 (5th Cir. 1977)

United States v. Riley, 657 F.2d 1377 (8th Cir. 1981)

A prosecutor with knowledge of and access to Brady material that exists

outside the borders of his or her district must disclose that material to the

defense.

United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989)

A prosecutor’s “open file” policy is relevant and may be considered in determining whether a Brady violation occurred, but it cannot, standing alone,

be given dispositive weight.

Smith v. Secretary of N.M. Dept. of Corrections, 50 F.3d 801 (10th Cir. 1995)

Brady does not require disclosure of a presentence report if the prosecution

had no access to it.

United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976)

The Brady right to disclosure of exculpatory evidence in the government’s
50 Manual on Recurring Problems in Criminal Trials, fifth edition

possession extends to evidence in possession of state agencies subject to

judicial control.

Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995)

Under Brady the agency that is charged with administration of a statute

and that has consulted with the prosecutor in the steps leading to prosecution is to be considered part of the prosecution in determining what information must be made available to a defendant charged with violation of

the statute.

United States v. Wood, 57 F.3d 733 (9th Cir. 1995)
Part IV. Enforcement of Orders During Trial 51

Part IV

Enforcement of Orders During Trial

A. Distinctions Between Civil and Criminal

Contempt

Civil contempt is remedial in scope to enforce compliance with a court order. The purpose of criminal contempt is punishment. If the purpose of the

contempt is to coerce compliance with a court order, the penalty is civil. If

the purpose is to punish an individual for past disobedience of a court order, the penalty is criminal.

Douglass v. First Nat’l Realty Corp., 543 F.2d 894 (D.C. Cir. 1976)

Pabst Brewing Co. v. Brewery Workers Local Union, 555 F.2d 146 (7th Cir. 1977)

United States v. North, 621 F.2d 1255 (3d Cir. 1980)

The Supreme Court has elucidated the civil contempt–criminal contempt

distinction as follows:

If the relief provided is a sentence of imprisonment, it is remedial if “the

defendant stands committed unless and until he performs the affirmative

act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” If the relief provided is a fine,

it is remedial when it is paid to the complainant, and punitive when it is

paid to the court, though a fine that would be payable to the court is also

remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.

Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988)

In civil contempt the defendant can purge himself or herself of contempt

by compliance with the court’s order and thereby avoid further sanctions.

This is not possible with respect to criminal contempt.

United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976)

United States v. Ayer, 866 F.2d 571 (2d Cir. 1989)

Imprisonment in civil contempt is for an indefinite period and may be ended

at any time by the party’s compliance. In criminal contempt the imprisonment is punitive, not coercive, and hence is for a fixed period of time.

United States v. Hughey, 571 F.2d 111 (2d Cir. 1978)

United States v. North, 621 F.2d 1255 (3d Cir. 1980)

United States v. Ayer, 866 F.2d 571 (2d Cir. 1989)

Criminal contempt is a crime in the ordinary sense. It is a violation of the

law, a public wrong. A conviction for criminal contempt frequently results

in serious penalties and carries the same stigmas as does an ordinary crimi-
52 Manual on Recurring Problems in Criminal Trials, fifth edition

nal conviction. The criminal contempt power is best exercised with restraint.

A judge should resort to criminal contempt only after he or she determines

that holding the contemnor in civil contempt would be inappropriate or

fruitless.

In re Irving, 600 F.2d 1027 (2d Cir. 1979)

1. Identifying nature of contempt proceedings

It is essential that the court determine and make known at the earliest practicable time whether the contempt is to be civil or criminal in order that the

proceedings may comply with appropriate rules of procedure.

Richmond Black Police Officers Ass’n v. Richmond, 548 F.2d 123 (4th Cir. 1977)

United States v. Hilburn, 625 F.2d 1177 (5th Cir. 1980)

United States v. Powers, 629 F.2d 619 (9th Cir. 1980)

2. Types of sanctions

There are three types of contempt sanctions: punitive, compulsory, and

compensatory. The first is a criminal contempt sanction. The other two are

civil.

United States v. Asay, 614 F.2d 655 (9th Cir. 1980)

3. Joint trials of civil and criminal contempt charges

Although it is not reversible error to do so, trying civil and criminal contempt charges jointly is not a recommended practice.

United States v. Rylander, 714 F.2d 996 (9th Cir. 1983)

4. Double jeopardy

Civil contempt followed by criminal contempt for the same act does not

subject the contemnor to double jeopardy. It is possible for the court to

bring an action in criminal contempt after bringing, and acting upon, an

action in civil contempt.

United States v. United Mine Workers, 330 U.S. 258 (1947)

Yates v. United States, 355 U.S. 66 (1957)

Shillitani v. United States, 384 U.S. 364 (1966)

United States v. Petito, 671 F.2d 68 (2d Cir. 1982)

Double jeopardy protection attaches in nonsummary criminal contempt

prosecutions just as it does in other criminal prosecutions.

United States v. Dixon, 509 U.S. 688 (1993)
Part IV. Enforcement of Orders During Trial 53

B. Civil Contempt

1. Civil contempt may be commenced when a party has

failed to comply with a court order

Civil contempt proceedings are intended to coerce compliance with a court

order, compensate the complainant for losses sustained by reason of noncompliance, or both.

Latrobe Steel Co. v. United Steelworkers of America, 545 F.2d 1336 (3d Cir. 1976)

G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29 (1st Cir. 1980)

United States v. PATCO, 678 F.2d 1 (1st Cir. 1982)

Sanctions for civil contempt may be imposed without a finding of willfulness. Since the purpose of civil contempt is remedial, it does not matter

what the defendant’s intention was in doing the contumacious act.

McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949)

In re Walters, 868 F.2d 665 (4th Cir. 1989)

Canterbury Belts, Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34 (2d Cir. 1989)

In a civil action, a civil contempt proceeding is instituted by the motion of

the plaintiff.

Latrobe Steel Co. v. United Steelworkers of America, 545 F.2d 1336 (3d Cir. 1976)

Wolfe v. Coleman, 681 F.2d 1302 (11th Cir. 1982)

2. Nature of contempt proceeding

A person charged with civil contempt is entitled to be represented by counsel, to be given adequate notice, and to have an opportunity to be heard.

Due process also requires that the court appoint counsel to represent a person charged with civil contempt if that person is indigent and faces the

prospect of imprisonment.

United States v. Anderson, 553 F.2d 1154 (8th Cir. 1977)

United States v. Powers, 629 F.2d 619 (9th Cir. 1980)

In re Rosahn, 671 F.2d 690 (2d Cir. 1982)

A civil contempt proceeding, which may lead to a penalty, is a trial rather

than a hearing on a motion. Hence, the issue may not be heard on affidavits.

Hoffman ex rel. NLRB v. Beer Drivers & Salesmen’s Local 888, 536 F.2d 1268 (9th

Cir. 1976)

There is no right to a jury trial in civil contempt.

Douglass v. First Nat’l Realty Corp., 543 F.2d 894 (D.C. Cir. 1976)

United States v. Carroll, 567 F.2d 955 (10th Cir. 1977)

In re Grand Jury Investigation, 600 F.2d 420 (3d Cir. 1979)

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983)
54 Manual on Recurring Problems in Criminal Trials, fifth edition

If indigent, a witness is entitled to appointed counsel for a civil contempt

proceeding.

In re Kilgo, 484 F.2d 1215 (4th Cir. 1973)

Proof of the contempt must be clear and convincing. This standard is higher

than preponderance of the evidence but lower than beyond a reasonable

doubt.

NLRB v. Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local 327, 592 F.2d

921 (6th Cir. 1979)

AMF, Inc. v. Jewitt, 711 F.2d 1096 (1st Cir. 1983)

N.A. Sales Co. v. Chapman Indus. Corp., 736 F.2d 854 (2d Cir. 1984)

Balla v. Idaho State Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989)

Harris v. City of Philadelphia, 47 F.3d 1311 (3d Cir. 1995)

3. Nature of remedies available to court after conviction

for civil contempt

In selecting contempt sanctions, a court is obliged to use the least possible

power adequate to the end proposed.

Spallone v. United States, 493 U.S. 265 (1990)

The district court has wide discretion in fashioning a remedy for civil contempt. The sanctions must, however, be remedial and compensatory, not

punitive.

G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29 (1st Cir. 1980)

In re Arthur Treacher’s Franchise Litig., 689 F.2d 1150 (3d Cir. 1982)

N.A. Sales Co. v. Chapman Indus. Corp., 736 F.2d 854 (2d Cir. 1984)

Harris v. City of Philadelphia, 47 F.3d 1311 (3d Cir. 1995)

Coercive sanctions are civil only if the contemnor is afforded the opportunity to purge himself or herself of the contempt.

International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994)

To compel compliance with a court order, the court may order imprisonment

for an indefinite period of time or impose a repetitive fine.

Although conditional fines may be imposed to compel compliance with a

court order, those fines may not be punitive in nature.

Soobzokov v. CBS, Inc., 642 F.2d 28 (2d Cir. 1981)

4. Court may impose fine on contemnor to reimburse

injured party

The court may order a contemnor to reimburse an injured party for losses

actually sustained from noncompliance and for expenses reasonably and
Part IV. Enforcement of Orders During Trial 55

necessarily incurred in attempting to enforce compliance.

Norman Bridge Drug Co. v. Banner, 529 F.2d 822 (5th Cir. 1976)

Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126 (2d Cir. 1979)

Commodity Futures Trading Comm’n v. Premex Inc., 655 F.2d 779 (7th Cir. 1981)

Quinter v. Volkswagen of America, 676 F.2d 969 (3d Cir. 1982)

In re Kave, 760 F.2d 343 (1st Cir. 1985)

If a fine is imposed on a contemnor in order to reimburse an injured party,

that fine must be based on evidence of the complainant’s actual losses.

McDonald’s Corp. v. Victory Investments, 727 F.2d 82 (3d Cir. 1984)

The court may in its discretion award attorneys’ fees reasonably and necessarily incurred by the injured party in an attempt to force compliance

with a court order.

Donovan v. Burlington N., 781 F.2d 680 (9th Cir. 1986) (court has discretion to

analyze each contempt case individually and to decide whether an award of

fees and expenses is appropriate)

Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529

(11th Cir. 1986)

Food Lion v. United Food & Commercial Workers Int’l Union, 103 F.3d 1007 (D.C.

Cir. 1997)

5. Effect of imprisoning for civil contempt someone

already imprisoned or charged

Unless the court orders otherwise, a sentence for civil contempt interrupts

a sentence already being served by a contemnor so that his or her release

date for the original sentence is postponed by the length of his or her imprisonment for civil contempt.

Bruno v. Greenlee, 569 F.2d 775 (3d Cir. 1978)

In re Garmon, 572 F.2d 1373 (9th Cir. 1978)

If a defendant is ordered to give handwriting samples but refuses to do so,

he or she may be committed for civil contempt, and the court may postpone his or her trial date.

United States v. Askew, 584 F.2d 960 (10th Cir. 1978)

6. Procedure if contemnor convinces court that

continuance of imprisonment will not persuade him

or her to comply

Confinement for contempt may continue so long as the court is satisfied

that the confinement might produce the intended result. If after a conscientious consideration of the circumstances, the court is convinced that the

confinement has ceased to have the desired coercive effect and is not going
56 Manual on Recurring Problems in Criminal Trials, fifth edition

to have that effect in the future, the confinement should be terminated.

Criminal contempt is then available and can fully vindicate the court’s authority.

Simkin v. United States, 715 F.2d 34 (2d Cir. 1983)

United States ex rel. Thom v. Jenkins, 760 F.2d 736 (7th Cir. 1985)

The determination whether a confinement for civil contempt has lost its

coercive effect is within the discretion of the trial court.

A contemnor need be released only upon a determination that there no

longer remains a realistic possibility that continued confinement might cause

the contemnor to testify. The burden of proof is on the contemnor to demonstrate that no such realistic possibility exists.

In re Parrish, 782 F.2d 325 (2d Cir. 1986)

C. Criminal Contempt

1. Applicable statute is 18 U.S.C. § 401

Section 401, Title 18 of the U.S. Code provides as follows:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none others,

as—

(1) Misbehavior of any person in its presence or so near thereto as to

obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree or command.

The power of contempt which a judge must have and exercise in protecting

the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But

its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.

Cooke v. United States, 267 U.S. 517 (1925)

The limits of power to punish for contempt are “the least possible power

adequate to the end proposed.”

Harris v. United States, 382 U.S. 162 (1965)

2. Applicable rule of procedure is Federal Rule of

Criminal Procedure 42

Rule 42 of the Federal Rules of Criminal Procedure provides as follows:
Part IV. Enforcement of Orders During Trial 57

(a) Summary disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence

of the court. The order of contempt shall recite the facts and shall be signed

by the judge and entered of record.

(b) Disposition upon notice and hearing. A criminal contempt except as

provided in subdivision (a) of this rule shall be prosecuted on notice. The

notice shall state the time and place of hearing, allowing a reasonable time

for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the

defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or

an order of arrest. The defendant is entitled to a trial by jury in any case in

which an act of Congress so provides. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves

disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a

verdict or finding of guilt the court shall enter an order fixing the punishment.

3. Attorney who may prosecute criminal contempt action

In Young v. United States, 481 U.S. 787 (1987), the Supreme Court held that

although district courts have authority to appoint private attorneys to prosecute criminal contempt actions, they should ordinarily request that the

appropriate prosecuting authority prosecute such contempt actions and

should appoint a private prosecutor only if this request is denied. The Court

also held that counsel for a party that is a beneficiary of a court order may

not be appointed to undertake a criminal contempt prosecution for alleged

violations of the order. A private attorney appointed to prosecute a criminal contempt should be as disinterested as a public prosecutor, since the

attorney is appointed solely to pursue the public interest in vindicating the

court’s authority.

4. Rights of defendant in criminal contempt action

Criminal contempt is a crime, and the defendant has all the safeguards of a

criminal defendant.

United States v. Williams, 622 F.2d 830 (5th Cir. 1980)

In re Grand Jury Proceedings Harrisburg Grand Jury 79-1, 658 F.2d 211 (3d Cir.

1981)

Downey v. Clauder, 30 F.3d 681 (6th Cir. 1994)

The defendant does not, however, have the right to have the proceeding

initiated by indictment or information. It may be initiated by notice.
58 Manual on Recurring Problems in Criminal Trials, fifth edition

Yates v. United States, 316 F.2d 718 (10th Cir. 1963)

In re Grand Jury Proceedings Harrisburg Grand Jury 79-1, 658 F.2d 211 (3d Cir.

1981)

The defendant is presumed innocent, and his or her guilt must be proved

beyond a reasonable doubt.

Cliett v. Hammonds, 305 F.2d 565 (5th Cir. 1962)

TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983)

Clemente v. United States, 766 F.2d 1358 (9th Cir. 1985)

United States v. Cutler, 58 F.3d 825 (2d Cir. 1995)

Federal Rule of Criminal Procedure 42 describes the procedure that must

be followed in prosecuting a criminal contempt action. The defendant must

be given reasonable time to prepare his or her defense. The defendant must

also be accorded sufficient time to engage an attorney of his or her choice,

to weigh the merits of the charge, to evaluate possible defenses, and to marshal the evidence deemed necessary to proceed.

In re Weeks, 570 F.2d 244 (8th Cir. 1978)

When a criminal contempt charge carries a possible penalty of imprisonment, the person charged has the right to counsel, whether the contempt

be petty or serious.

Richmond Black Police Officers Ass’n v. Richmond, 548 F.2d 123 (4th Cir. 1977)

Mann v. Hendrien, 871 F.2d 51 (7th Cir. 1989)

If indigent, a witness is entitled to appointed counsel for a Rule 42(b) criminal contempt proceeding.

In re Kilgo, 484 F.2d 1215 (4th Cir. 1973)

5. Right to jury trial in criminal contempt action

depends on potential sentence

The Sixth Amendment right to a jury trial applies to criminal contempt

proceedings in the same manner as it applies to every other criminal proceeding. A criminal contempt that is considered a petty offense may be tried

without a jury, but there is a right to a jury trial if the contempt is considered a serious offense.

Muniz v. Hoffman, 422 U.S. 454 (1975)

United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982)

Sections 401 and 402, Title 18 of the U.S. Code do not categorize acts of

contempt as “petty” or “serious.” In prosecutions for criminal contempt for

which no maximum penalty is specified by law, the severity of the sentence

actually imposed is the best indication of the seriousness of the particular

offense.
Part IV. Enforcement of Orders During Trial 59

Bloom v. Illinois, 391 U.S. 194 (1968)

Frank v. United States, 395 U.S. 147 (1969)

Lewis v. United States, 518 U.S. 322 (1996)

United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982)

United States v. Linney, 134 F.3d 274 (4th Cir. 1998)

a. Imprisonment

If a sentence of greater than six months’ imprisonment is imposed on a

criminal contemnor, the contempt is deemed to be a serious offense. If a

penalty of less than six months’ imprisonment is imposed, the contempt is

deemed to be a petty offense. Thus, a defendant in a criminal contempt

proceeding has the right to a jury trial if he or she is exposed to a period of

imprisonment in excess of six months. The defendant is not entitled to a

jury trial if, prior to trial, the court states that the maximum sentence shall

be imprisonment for no more than six months.

Cheff v. Schnackenberg, 384 U.S. 373 (1966)

Bloom v. Illinois, 391 U.S. 194 (1968)

Frank v. United States, 395 U.S. 147 (1969)

Muniz v. Hoffman, 422 U.S. 454 (1975)

In re Dellinger, 502 F.2d 813 (7th Cir. 1974)

In re Weeks, 570 F.2d 244 (8th Cir. 1978)

Nat’l Maritime Union v. Aquaslide ‘N’ Dive Corp., 737 F.2d 1395 (5th Cir. 1984)

Rojas v. United States, 55 F.3d 61 (2d Cir. 1995)

United States v. Linney, 134 F.3d 274 (4th Cir. 1998)

Neither 18 U.S.C. § 401 nor Rule 42 of the Federal Rules of Criminal Procedure sets a maximum sentence for criminal contempt. The severity of the

sentence is within the discretion of the trial court.

United States v. Patrick, 542 F.2d 381 (7th Cir. 1976) (witness found in criminal

contempt and sentenced to four years’ imprisonment for refusing to testify)

United States v. Berardelli, 565 F.2d 24 (2d Cir. 1977) (witness found in criminal

contempt and sentenced to five years’ imprisonment for refusing to testify)

A jury trial is required if the defendant is tried for various acts of contempt

committed during a trial and the sentences imposed aggregate more than

six months, even though no sentence of more than six months is imposed

for any one act of contempt.

Codispoti v. Pennsylvania, 418 U.S. 506 (1974)

Cf. Lewis v. United States, 518 U.S. 322 (1996) (there is no right to a jury trial

when a defendant is tried for multiple petty offenses that carry an authorized

aggregate prison term of more than six months)
60 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Fines imposed on individuals

An individual may be punished for criminal contempt without a jury trial

if the punishment imposed is not greater than that for a petty offense.

Bloom v. Illinois, 391 U.S. 194 (1968)

Under the current statutory scheme, an individual may be fined up to $5,000

following conviction for a petty offense.

18 U.S.C. §§ 19, 3571(b)(6), 3571(b)(7)

In Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), the Supreme

Court noted, in the context of a motor vehicle offense, that it frequently

looks to the federal offense classification scheme in deciding when a jury

trial must be provided. In concluding that Blanton’s offense was a petty

offense not requiring a jury trial, the Court reasoned that the $1,000 fine

the defendant faced was “well below the $5,000 level set by Congress in its

most recent definition of a ‘petty’ offense.” Id. at 544.

The Fourth, Ninth, and District of Columbia Circuits have held that if a

fine of more than $500 is imposed on an individual criminal contemnor,

the contempt is considered a serious offense and the right to a jury trial

attaches.

Douglass v. First Nat’l Realty Corp., 543 F.2d 894 (D.C. Cir. 1976)

Richmond Black Police Officers Ass’n v. Richmond, 548 F.2d 123 (4th Cir. 1977)

United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977)

In determining that $500 marks the dividing line between petty and serious

contempt offenses for purposes of the Sixth Amendment right to a jury

trial, these courts relied in part on 18 U.S.C. § 1, which defined a petty

offense as a misdemeanor for which the maximum punishment was six

months’ imprisonment or a fine of $500, or both. However, 18 U.S.C. § 1

has since been repealed.

c. Fines imposed on organizations

The Supreme Court has held that a fine of $52 million against a union was

a serious criminal contempt sanction that could not be imposed without a

jury trial.

International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994)

In upholding the imposition of a $10,000 fine on a labor union following a

nonjury contempt proceeding, however, the Supreme Court indicated that

an organization is not entitled to a jury trial when the fine imposed will not

cause it serious financial deprivation.

Muniz v. Hoffman, 422 U.S. 454 (1975)
Part IV. Enforcement of Orders During Trial 61

The Fourth Circuit has upheld the imposition of a fine of $80,000 on a

corporation with a net worth of $540,000 following a nonjury criminal contempt trial.

United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982)

The Second Circuit has held that regardless of their financial resources, corporations and all other organizations have the right to a jury trial in criminal contempt proceedings in which they are subjected to a fine in excess of

$100,000. In cases involving fines of less than $100,000, the trial court must

consider whether the fine will have such a significant financial impact on

the organization as to render the contempt a serious offense requiring a

jury trial.

United States v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989)

Under the current statutory scheme, an organization may be fined up to

$10,000 following conviction for a petty offense.

18 U.S.C. §§ 19, 3571(c)(6), 3571(c)(7)

d. Probation

The additional imposition of a term of probation does not raise a petty

criminal contempt to the level of a serious offense for purposes of the Sixth

Amendment right to a jury trial.

Frank v. United States, 395 U.S. 147 (1969)

6. Trial by another judge

A judge who has been subject to personal attacks throughout the trial should

not preside at a posttrial contempt proceeding.

United States v. Pina, 844 F.2d 1 (1st Cir. 1988)

7. Requirements for conviction of criminal contempt

To warrant a conviction for criminal contempt, the conduct must constitute misbehavior that rises to the level of an obstruction of and an imminent threat to the administration of justice and must be accompanied by an

intention on the part of the contemnor to obstruct, disrupt, or interfere

with the administration of justice.

In re Williams, 509 F.2d 949 (2d Cir. 1975)

In re Pilsbury, 866 F.2d 22 (2d Cir. 1989)

A person bound by a court order may be found in criminal contempt for

violating it only if the order is clear and definite and the contemnor has

knowledge of it.

United States v. Baker, 641 F.2d 1311 (9th Cir. 1981)
62 Manual on Recurring Problems in Criminal Trials, fifth edition

Downey v. Clauder, 30 F.3d 681 (6th Cir. 1994)

United States v. Cutler, 58 F.3d 825 (2d Cir. 1995)

Criminal intent is an essential element of the offense and must be proven

beyond a reasonable doubt. It is a volitional act done by one who knows or

should reasonably be aware that his or her conduct is wrongful.

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

United States v. Marx, 553 F.2d 874 (4th Cir. 1977)

In re Kirk, 641 F.2d 684 (9th Cir. 1981)

United States v. Cutler, 58 F.3d 825 (2d Cir. 1995)

An attorney possesses the requisite intent for criminal contempt only if the

attorney knows or reasonably should be aware, in view of all of the circumstances—especially in the heat of the controversy—that he or she is exceeding the outermost limits of an attorney’s proper role and is hindering, rather

than facilitating, the search for truth.

Hawk v. Cardoza, 575 F.2d 732 (9th Cir. 1978)

In re Kirk, 641 F.2d 684 (9th Cir. 1981)

8. Sentencing of one found guilty of criminal contempt

A court may impose a fine or a period of imprisonment for criminal contempt but may not both fine and imprison a defendant.

United States v. Di Girlomo, 548 F.2d 252 (8th Cir. 1977)

United States v. Holmes, 822 F.2d 481 (5th Cir. 1987)

The severity of the sentence is left to the discretion of the trial court.

Robles v. United States, 279 F.2d 401 (9th Cir. 1960)

United States v. Cutler, 58 F.3d 825 (2d Cir. 1995)

If found guilty of criminal contempt by a jury, the contemnor may be sentenced to an unlimited number of months or years in prison or fined an

unlimited number of dollars.

United States v. Brummitt, 665 F.2d 521 (5th Cir. 1981) (witness sentenced to

five years for refusing to testify)

D. Summary Contempt

Section 401, Title 18 of the U.S. Code provides that “a court of the United

States shall have the power to punish by fine or imprisonment the misbehavior of any person in its presence or so near thereto as to obstruct the

administration of justice.”

Rule 42(a) of the Federal Rules of Criminal Procedure provides as follows:
Part IV. Enforcement of Orders During Trial 63

A criminal contempt may be punished summarily if the judge certifies

that the judge saw or heard the conduct constituting the contempt and

that it was committed in the actual presence of the court. The order of

contempt shall recite the facts and shall be signed by the judge and entered of record.

Given the absence in Rule 42(a) of such fundamental due process requirements as notice and an opportunity to be heard, the Supreme Court has

held that Rule 42(a) is a rule of necessity, creating a narrow category of

contempt reserved for exceptional circumstances.

Maggio v. Zeitz, 333 U.S. 56 (1948)

Harris v. United States, 382 U.S. 162 (1965)

In re Pilsbury, 866 F.2d 22 (2d Cir. 1989)

Unless there is a “compelling reason for an immediate remedy,” the procedure articulated in Rule 42(b) is normally to be followed.

Harris v. United States, 382 U.S. 162 (1965)

United States v. Wilson, 421 U.S. 309 (1975)

1. Nature of conduct punishable as summary contempt

Instant action may be necessary when immediate corrective steps are needed

to restore order and maintain the dignity and authority of the court.

Johnson v. Mississippi, 403 U.S. 212 (1971)

Codispoti v. Pennsylvania, 418 U.S. 506 (1974)

To preserve order in the courtroom for the proper conduct of business, the

court must act instantly to suppress disturbances or violence or physical

obstruction or disrespect to the court when it occurs in open court.

Cooke v. United States, 267 U.S. 517 (1925)

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

Summary contempt is available only when the conduct constituting the

contempt occurs within the sight or hearing of the judge. For misbehavior

to rise to the level of an obstruction of the judicial process, there must be a

“material disruption or obstruction.” Mere disrespect or affront to the judge’s

sense of dignity is not sufficient. Discourtesy is not sufficient.

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

Gordon v. United States, 592 F.2d 1215 (1st Cir. 1979)

There must be misconduct that actually obstructs the court in the performance of its judicial duty.

Parmelee Transp. Co. v. Keeshin, 292 F.2d 806 (7th Cir. 1961)

Ciraolo v. Madigan, 443 F.2d 314 (9th Cir. 1971)
64 Manual on Recurring Problems in Criminal Trials, fifth edition

All elements of the contempt must be within the personal observation of

the judge.

Ciraolo v. Madigan, 443 F.2d 314 (9th Cir. 1971)

Trial judges must be on guard against confusing behavior that offends their

sensibilities with behavior that obstructs the administration of justice. The

contemnor must have the intent to obstruct, disrupt, or interfere with the

administration of justice.

United States v. Trudell, 563 F.2d 889 (8th Cir. 1977)

A summary contempt proceeding is appropriate only when there is a need

for immediate action to put an end to disruptive acts in the presence of the

judge.

United States v. Pace, 371 F.2d 810 (2d Cir. 1967)

In re Gustafson, 619 F.2d 1354 (9th Cir. 1980)

United States v. Moschiano, 695 F.2d 236 (7th Cir. 1982)

United States v. Perry, 116 F.3d 952 (1st Cir. 1997) (court may delay imposing

sentence for direct contempt that occurred in judge’s presence)

It is questionable whether the failure of a spectator to simply stand at an

opening or closing ceremony is conduct that threatens the judge or disrupts or obstructs court proceedings. If the refusal to stand is accompanied

by some disturbance, disorder, or interruption, however, it may be considered a disruptive act.

United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969)

In re Dellinger, 461 F.2d 389 (7th Cir. 1972)

United States v. Abascal, 509 F.2d 752 (9th Cir. 1975)

2. Caution to be observed in exercising summary

contempt power

Summary contempt power must be limited to “the least possible power

adequate to the end proposed.”

Pietsch v. President of United States, 434 F.2d 861 (2d Cir. 1970)

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

The exercise of the power of contempt is a delicate one, and care is needed

to avoid arbitrary or oppressive conclusions. This rule of caution is especially important when the contempt charged has in it the element of personal criticism of or attack on the judge. The judge must banish any impulse for reprisal, but should not bend backward and injure the authority

of the court by too great a showing of leniency.

Cooke v. United States, 267 U.S. 517 (1925)
Part IV. Enforcement of Orders During Trial 65

3. Finding attorney in summary contempt

Although citations of attorneys for summary contempt have been affirmed

on appeal, the courts of appeals have stated that where the line between

vigorous advocacy and actual obstruction defies strict delineation, doubts

should be resolved in favor of vigorous advocacy.

In re Dellinger, 461 F.2d 389 (7th Cir. 1972)

Pennsylvania v. Local 542, Int’l Union of Operating Eng’rs, 552 F.2d 498 (3d Cir.

1977)

Before an attorney may be found guilty of contempt there must be a showing that the attorney knew or reasonably should have known that he or she

was exceeding the outermost limits of an attorney’s proper role and hindering rather than facilitating the search for truth. There must be some sort of

actual damaging effect on judicial order before an attorney may be held in

criminal contempt.

Hawk v. Cardoza, 575 F.2d 732 (9th Cir. 1978)

There must be a compelling reason for an immediate remedy before an

attorney may be found in summary contempt.

United States v. Lowery, 733 F.2d 441 (7th Cir. 1984)

4. Summary contempt procedure

a. Warning should be given and opportunity to be heard granted

The preferable procedure is for the court to warn the individual that his or

her continuation of the conduct at issue will result in a citation for contempt. A warning may be effective to prevent further disorder.

United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965)

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977) (warning required)

In re Pilsbury, 866 F.2d 22 (2d Cir. 1989) (warning required where reasonable

person would not know court considered conduct contumacious)

The contemnor does not have the right to counsel, to notice, to a jury, or to

an opportunity to present a defense, but he or she should be given an opportunity before being sentenced to speak in his or her own behalf in the

nature of a right of allocution.

Taylor v. Hayes, 418 U.S. 488 (1974)

The court should allow the individual to be heard before citing him or her

for contempt, unless doing so would be inconsistent with the preservation

of order.

United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

In re Pilsbury, 866 F.2d 22 (2d Cir. 1989)
66 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Timing of contempt citation and sentencing

The court may cite an individual in summary contempt and file a certificate but defer sentencing until the conclusion of the trial. If, however, the

court does not feel that an immediate sanction is necessary, it is probably

wiser for the court to proceed under Rule 42(b) than to proceed under the

summary procedure of Rule 42(a).

MacInnis v. United States, 191 F.2d 157 (9th Cir. 1951)

Pennsylvania v. Local 542, Int’l Union of Operating Eng’rs, 552 F.2d 498 (3d Cir.

1977)

Gordon v. United States, 592 F.2d 1215 (1st Cir. 1979)

In re Gustafson, 619 F.2d 1354 (9th Cir. 1980)

United States v. Powers, 629 F.2d 619 (9th Cir. 1980)

The circuits are in conflict as to whether a person may be cited in summary

contempt at the conclusion of the trial.

Gordon v. United States, 592 F.2d 1215 (1st Cir. 1979) (court may wait until end

of trial to charge someone with summary contempt)

In re Gustafson, 619 F.2d 1354 (9th Cir. 1980) (court may not wait until end of

trial to charge someone with summary contempt)

c. Judge must prepare, sign, and file order of contempt

Federal Rule of Criminal Procedure 42(a) requires the judge to enter an

order of contempt. In the order the judge must certify that he or she saw or

heard the conduct constituting the contempt and that it took place in the

judge’s presence.

The purpose of the certification in the order of contempt is to permit informed appellate review. A criminal contempt order stands or falls on the

specifications of wrongdoing on which it is based. For that reason the order

of contempt must recite with accuracy the conduct that caused the court to

find someone in summary contempt. Conclusory language and general citations to the record are insufficient.

United States v. Ardle, 435 F.2d 861 (9th Cir. 1970)

United States v. Marshall, 451 F.2d 372 (9th Cir. 1971)

In re Gustafson, 608 F.2d 767 (9th Cir. 1979)

It is probably advisable to incorporate the relevant portion of the trial record

into the order as an adjunct to the specific charges. The incorporation of

the record is not, however, a substitute for a specific recital by the court of

the facts that led to the contempt citation.

The form of the order of contempt may be as follows:

In conformity with Rule 42(a) of the Federal Rules of Criminal Procedure

I hereby certify that [here insert a detailed recital of the acts of contempt].
Part IV. Enforcement of Orders During Trial 67

Because of the foregoing conduct, which obstructed and disrupted the court

in its administration of justice, I sentenced [insert name of contemnor] to

____ days in jail, [or fined him or her the sum of ____ dollars] the said jail

sentence to commence [at once/at the conclusion of the trial].

The order of contempt should be dated and must be signed by the judge. It

need not be sworn.

United States v. Seale, 461 F.2d 345 (7th Cir. 1972)

The court may commit the contemnor to jail immediately and thereafter

file its order of contempt. The order should, however, be prepared and filed

as quickly as possible.

United States v. Hall, 176 F.2d 163 (2d Cir. 1949)

Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950)

In re Manufacturers Trading Corp., 194 F.2d 948 (6th Cir. 1952)

d. Punishment that may be imposed

In imposing punishment, the judge may properly take into consideration

the willfulness and deliberateness of the defiance of the court’s order, the

seriousness of the consequences of the contumacious behavior, the necessity

of effectively terminating the defendant’s defiance as required by the public

interest, and the importance of deterring such acts in the future.

United States v. Trudell, 563 F.2d 889 (8th Cir. 1977)

The court may imprison or fine the contemnor but may not do both.

The court may not summarily impose a sentence of imprisonment in excess of six months. If the court feels that a sentence in excess of six months

would be appropriate, the court must proceed by notice under Federal Rule

of Criminal Procedure 42(b) and accord the contemnor a jury trial.

The judge may impose summary contempt sanctions repeatedly during trial.

However, if a single hearing is held for multiple incidents of contempt, the

sentence imposed at the hearing may not exceed six months.

United States v. Pina, 844 F.2d 1 (1st Cir. 1988)

E. Recalcitrant Witness

Section 1826(a), Title 28 of the U.S. Code provides that whenever a witness

in any proceeding before a court or grand jury refuses without just cause to

comply with an order of the court to testify, the court may summarily order

the witness confined until such time as he or she is willing to comply with

the court’s order.
68 Manual on Recurring Problems in Criminal Trials, fifth edition

Confinement shall not exceed

1. the life of the court proceeding, or

2. the term of the grand jury.

In no event may the confinement last longer than eighteen months.

Confinement under 28 U.S.C. § 1826(a) is coercive, not punitive. Its sole

purpose is to compel the contemnor to provide the requested testimony.

In re Grand Jury Proceedings, 862 F.2d 430 (2d Cir. 1988)

1. Court must order recalcitrant witness to respond

The court must give the witness an explicit, unambiguous order to answer

the question.

United States v. Wilson, 421 U.S. 309 (1975)

United States v. Chandler, 380 F.2d 993 (2d Cir. 1967)

2. Recalcitrant witness must be warned and accorded

opportunity to explain

The trial court must explicitly warn the witness of the consequences of continued refusal to answer a proper question.

United States v. Chandler, 380 F.2d 993 (2d Cir. 1967)

United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

The witness must be accorded the opportunity to present his or her reasons

for refusing to testify.

United States v. Powers, 629 F.2d 619 (9th Cir. 1980)

3. Recalcitrant witness should first be cited in civil

contempt

The court should first apply coercive pressure by citing the witness for civil

contempt and make use of the more drastic criminal sanctions only if the

witness’s disobedience continues.

Yates v. United States, 355 U.S. 66 (1957)

Shillitani v. United States, 384 U.S. 364 (1966)

If there is a compelling reason for immediate, strong action, a trial court

may hold in criminal contempt a witness who has refused to comply with

the court’s order to testify at trial (as contrasted with refusing to testify

before a grand jury) and may summarily order his or her imprisonment

pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure.
Part IV. Enforcement of Orders During Trial 69

United States v. Wilson, 421 U.S. 309 (1975)

Baker v. Eisenstadt, 456 F.2d 382 (1st Cir. 1972)

In re Scott, 605 F.2d 736 (4th Cir. 1979)

In re Boyden, 675 F.2d 643 (5th Cir. 1982)

It is improper to coerce a recalcitrant witness into testifying at the trial of a

codefendant by imposing a harsh sentence based on charges to which the

witness has pled guilty and indicating that the sentence may later be reduced if the witness cooperates.

United States v. Giraldo, 822 F.2d 205 (2d Cir. 1987)

The witness is not entitled to a trial before a jury in a civil contempt proceeding.

Andretta v. United States, 530 F.2d 681 (6th Cir. 1976)

In re Grand Jury Investigation, 600 F.2d 420 (3d Cir. 1979)

4. Recalcitrant witness cited for civil contempt should be

advised of possibility of purging the contempt

When a recalcitrant witness is committed in civil contempt, the witness

should be advised that he or she can be purged of the contempt if he or she

answers the question at issue. The witness should also be advised to inform

the court immediately if he or she decides to answer the question.

United States v. Hughey, 571 F.2d 111 (2d Cir. 1978)

After a recalcitrant witness has been committed, he or she may be brought

back into the courtroom and given a chance to purge himself or herself of

the civil contempt and thereby avoid prosecution for criminal contempt.

United States v. Patrick, 542 F.2d 381 (7th Cir. 1976)

5. Recalcitrant witness cited for civil contempt may be

subject to punishment for criminal contempt, and

should be so advised

A recalcitrant witness cited for civil contempt should be advised that if he

or she does not purge himself or herself of that contempt, he or she may be

prosecuted for criminal contempt and thereafter punished by a fine or commitment for that criminal contempt.

Yates v. United States, 227 F.2d 848 (9th Cir. 1955)

There must be a forthright positive notification to the witness that he or

she is subject to an additional punitive sanction if the court chooses to invoke it and that the coercive restraint for civil contempt does not relieve the

witness of a possible penal sentence.
70 Manual on Recurring Problems in Criminal Trials, fifth edition

Yates v. United States, 227 F.2d 848 (9th Cir. 1955)

Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958)

But see United States v. Monteleone, 804 F.2d 1004 (7th Cir. 1986) (recommending, but not requiring, notification)

Like any other witness, a testifying defendant who refuses to answer a proper

question, after being directed to do so by the court, is subject to sanctions

for criminal contempt.

United States v. Martin, 525 F.2d 703 (2d Cir. 1975)

United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

6. Procedure if recalcitrant witness is confined for civil

contempt but fails to purge the contempt

If a witness refuses to answer a question, the trial judge should instruct the

jury that it should not speculate as to what the testimony would have been.

United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974)

At the conclusion of the trial, a witness held in civil contempt should be

released from custody, but thereafter a proceeding under Federal Rule of

Criminal Procedure 42(b) may be commenced to cite the witness for criminal contempt.

Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958)

If the court acts to cite the witness summarily for criminal contempt during the progress of the trial, it may proceed under Rule 42(a). If the court

proceeds after the termination of the trial, it must proceed under Rule 42(b),

as the defendant’s refusal to answer the question no longer obstructs the

progress of the trial.

United States v. Wilson, 421 U.S. 309 (1975)

United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

7. Procedure upon refusal by recalcitrant witness to

respond to question before grand jury

A witness who refuses to answer a question before a grand jury may not be

cited for criminal contempt under Rule 42(a) because the misbehavior is

not in the actual presence of the judge. The proper procedure is under Rule

42(b), according to which the witness is given notice and a reasonable time

within which to prepare his or her defense.

Harris v. United States, 382 U.S. 162 (1965)

United States v. Alter, 482 F.2d 1016 (9th Cir. 1973)

In re Sadin, 509 F.2d 1252 (2d Cir. 1975)

In re Brummitt, 608 F.2d 640 (5th Cir. 1979)

In re Grand Jury Proceedings, 643 F.2d 226 (5th Cir. 1981)
Part IV. Enforcement of Orders During Trial 71

A civil contempt order for a witness’s refusal to testify before a grand jury is

without further effect after expiration of the grand jury’s term or the witness purging himself or herself of the contempt.

In re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988)

8. Procedure if recalcitrant witness claims inability to

remember or gives evasive or equivocal answers

A witness’s equivocal response, evasive answer, or false disclaimer of knowledge or memory constitutes contemptuous conduct.

In re Weiss, 703 F.2d 653 (2d Cir. 1983)

A false assertion of memory loss constitutes a refusal to testify.

In re Battaglia, 653 F.2d 419 (9th Cir. 1981)

A claimed inability to remember is the equivalent of a refusal to testify if it

is both obviously false and intentionally evasive and obstructive.

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983)

However, the government must prove these elements by clear and convincing

evidence, either extrinsic or intrinsic.

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983)

A civil contempt proceeding for a witness’s asserted memory loss requires a

three-step analysis:

1. The government must make out a prima facie showing of contempt.

2. The recalcitrant witness must provide some explanation, on the

record, for failing to respond to a proper question.

3. If the recalcitrant witness meets his or her burden of production by

claiming a loss of memory, the government must carry its burden of

proof by demonstrating that the witness did in fact remember the

events in question.

In re Battaglia, 653 F.2d 419 (9th Cir. 1981)

The government has the burden of proving by clear and convincing evidence the falsity of a recalcitrant witness’s claim of loss of memory. That

proof may include extrinsic proof, such as tape recordings or documents,

or it may be found in the witness’s demeanor and answers.

In re Bongiorno, 694 F.2d 917 (2d Cir. 1982)
72 Manual on Recurring Problems in Criminal Trials, fifth edition

9. Confinement for civil contempt

A recalcitrant witness who refuses to answer a proper question at trial may

not be confined for civil contempt beyond the duration of the trial itself.

Yates v. United States, 227 F.2d 844 (9th Cir. 1955)

A recalcitrant witness who refuses to answer a proper question before a

grand jury may not be confined for civil contempt beyond the term of the

grand jury and in no event longer than eighteen months.

28 U.S.C. § 1826(a)

If the court determines that confinement for civil contempt has ceased to

have a coercive effect upon a recalcitrant witness, the civil contempt remedy should be ended.

In re Grand Jury Proceedings, 862 F.2d 430 (2d Cir. 1988)

See supra at 55–56.

10. Recalcitrant witness serving sentence is not entitled

to credit for time served on contempt citation

If a recalcitrant witness is already serving a sentence, the court may order

that sentence to be interrupted by imprisonment for civil contempt.

Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974)

In re Garmon, 572 F.2d 1373 (9th Cir. 1978)

In re Grand Jury Investigation, 865 F.2d 578 (3d Cir. 1989)

A federal prisoner is not entitled to credit for time spent in custody for a

civil contempt unless the court expressly makes the contempt confinement

concurrent with a prior criminal sentence.

Bruno v. Greenlee, 569 F.2d 775 (3d Cir. 1978)

The circuits are in conflict as to whether a federal district court has authority under 28 U.S.C. § 1826(a) to interrupt a contemnor’s preexisting

state sentence for service of a federal civil contempt sentence.

In re Liberatore, 574 F.2d 78 (2d Cir. 1978) (federal tolling of state sentence

intrudes on sovereignty of state court)

In re Grand Jury Investigation, 865 F.2d 578 (3d Cir. 1989) (federal tolling of

state sentence permissible)

F. Disruptive Defendant

A disruptive defendant may not be permitted by his or her behavior to obstruct the orderly progress of a trial.

Illinois v. Allen, 397 U.S. 337 (1970)
Part IV. Enforcement of Orders During Trial 73

1. Defendant should be warned

Before taking action against a disruptive defendant, the court should warn

the defendant of the consequences of his or her continued disruptive behavior.

Illinois v. Allen, 397 U.S. 337 (1970)

2. Options available to court

After a disruptive defendant has been warned of the consequences of his or

her continued disruptive behavior, the trial court has these options:

1. cite the defendant for contempt;

2. remove the defendant from the courtroom until the defendant promises to conduct himself or herself properly; or

3. permit the defendant to remain in court but have him or her bound

and gagged.

Illinois v. Allen, 397 U.S. 337 (1970)

3. Removal of defendant from courtroom

The court may order the removal of a defendant from the courtroom if the

defendant interrupts the proceedings. The court should state that the defendant may return anytime after he or she assures the court that there will

be no further disturbance.

United States v. Munn, 507 F.2d 563 (10th Cir. 1974)

United States v. Kizer, 569 F.2d 504 (9th Cir. 1978)

Scurr v. Moore, 647 F.2d 854 (8th Cir. 1981)

If a defendant who is appearing pro se disrupts the proceedings, the court

should first warn the defendant that if there is any further disruption the

court will deny him or her the right to proceed pro se and will direct standby

counsel to take over. If there is any further disruption, the court should

direct standby counsel to take over. If the defendant continues to be disruptive, he or she may then be removed from the courtroom.

Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978)

If a defendant is removed from the courtroom, electronic arrangements

should be made so that the defendant can hear the proceedings.

United States v. Munn, 507 F.2d 563 (10th Cir. 1974)

After being removed from the courtroom, a disruptive defendant may reclaim the right to be present by assuring the court that he or she will not

engage in inappropriate conduct.

Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978)
74 Manual on Recurring Problems in Criminal Trials, fifth edition

4. Shackling and gagging of defendant

If a defendant’s behavior disrupts court proceedings, the court may keep

the defendant in the courtroom and have him or her shackled or gagged, or

both, in order to prevent a continuation of the disruptive behavior.

Bibbs v. Wyrick, 526 F.2d 226 (8th Cir. 1975)

United States v. Theriault, 531 F.2d 281 (5th Cir. 1976)

In making the decision to shackle a defendant, the court may take into consideration the defendant’s past conduct in the courtroom, prior escapes from

custody, disruptive conduct in other proceedings, and prison disciplinary

record.

United States v. Theriault, 531 F.2d 281 (5th Cir. 1976)

The court may not delegate the decision whether to shackle the defendant

to the marshal, but may rely on the marshal’s advice.

United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)

If the court orders that a defendant be shackled or shackled and gagged, the

court must make a full statement on the record of the reasons for such

action. The defendant and his or her counsel should be given an opportunity

to respond to the reasons presented and to try to convince the court that

such measures are unnecessary.

United States v. Theriault, 531 F.2d 281(5th Cir. 1976)

United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)

If a defendant is shackled, the court should take precautions, such as bringing the defendant to the courtroom out of the presence of the jury, to ensure that any prejudicial effect is minimized.

United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)

Gilmore v. Armontrout, 861 F.2d 1061 (8th Cir. 1988)

United States v. Battle, 173 F.3d 1343 (11th Cir. 1999)

See supra at 29.
Part V. Evidence 75

Part V

Evidence

A. Admissibility

1. Coconspirator statements

According to Federal Rule of Evidence 801(d), “[a] statement is not hearsay

if—

“(1) . . . .

“(2) . . . The statement is offered against a party and is . . .

“(E) a statement by a coconspirator of a party during the course and

in furtherance of the conspiracy.”

(Although the rule states that this type of out-of-court statement is not

hearsay, the statements that are made admissible by this rule are typical

hearsay statements, that is, they are out-of-court statements offered at trial

to prove the truth of the matter asserted.)

Before commencement of trial, government counsel should be advised that

no proposed coconspirator statement shall be presented in evidence until it

has first been presented to the court out of the presence of the jury and the

court has ruled that it will be received in evidence.

a. Court’s concern must be with statements offered to prove truth

of matter asserted

The rules regarding coconspirator statements relate to utterances that would

otherwise be banned by the hearsay rule.

United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969)

A statement does not fall within the ambit of the coconspirator rule unless

it would otherwise be excludable by reason of being a hearsay declaration.

A declaration that has relevance for a reason other than the truth of the

matter asserted may be admissible, if relevant, as a non-hearsay “verbal act.”

Anderson v. United States, 417 U.S. 211 (1974)

United States v. Calarco, 424 F.2d 657 (2d Cir. 1970)

United States v. Martorano, 561 F.2d 406 (1st Cir. 1977)

Tape recordings introduced to show the scope of certain gambling operations, but not offered to prove the truth of the content of any conversations,

are not hearsay. The recordings are thus admissible as verbal acts.

United States v. Boyd, 566 F.2d 929 (5th Cir. 1978)
76 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Findings required

For a statement to be admissible as a coconspirator statement, the court

must find that

1. there was a conspiracy in existence;

2. the declarant was a member of that conspiracy;

3. the defendant against whom the statement is offered was a member

of that conspiracy;

4. the statement was made in furtherance of that conspiracy; and

5. the statement was made during the course of that conspiracy.

(1) In determining whether a proposed coconspirator statement is

admissible, the trial court may take into consideration the content of

the statement itself

At one time most circuits held that in determining whether an alleged coconspirator statement was admissible, a trial court could not take into consideration the proposed statement itself.

In Bourjaily v. United States, 483 U.S. 171 (1987), however, the Supreme

Court reversed the rulings of those circuits and held that a trial court may

take into consideration the content of an alleged coconspirator statement

itself in determining whether that statement is to be admitted as a coconspirator statement.

The Supreme Court left open the question whether the court could rely

solely on the proposed coconspirator statement to determine that it was

admissible as a coconspirator statement.

In addition, in Bourjaily the Supreme Court ruled that if a coconspirator

statement met all the evidentiary requirements for admission, the trial court

need not make a further inquiry as to whether the statement met the challenge of the Confrontation Clause.

 (2) Existence of a conspiracy must be proved

Before admitting the statement of a coconspirator, the trial judge must find

that a conspiracy did in fact exist.

Bourjaily v. United States, 483 U.S. 171 (1987)

United States v. Macklin, 573 F.2d 1046 (8th Cir. 1978)

United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978)
Part V. Evidence 77

The existence of a conspiracy and the defendant’s participation in it are

preliminary questions of fact that must be resolved by the court pursuant

to Federal Rule of Evidence 104(a) before a coconspirator statement may

be admitted into evidence.

Bourjaily v. United States, 483 U.S. 171 (1987)

The court must apply a preponderance-of-the-evidence standard in determining whether such preliminary questions of fact have been established

under Rule 104(a).

Bourjaily v. United States, 483 U.S. 171 (1987)

The court may consider the content of the proposed coconspirator statement itself, along with any independent evidence of the conspiracy, in applying Rule 104(a) to resolve the preliminary factual question whether the

existence of a conspiracy has been proven by a preponderance of the evidence.

Bourjaily v. United States, 483 U.S. 171 (1987)

It is not necessary, however, that a conspiracy be charged in the indictment.

United States v. Doulin, 538 F.2d 466 (2d Cir. 1976)

United States v. Jones, 540 F.2d 465 (10th Cir. 1976)

United States v. Kendricks, 623 F.2d 1165 (6th Cir. 1980)

United States v. Kendall, 665 F.2d 126 (7th Cir. 1981)

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

Nor is it necessary that the declarant be charged as a codefendant.

United States v. Jones, 542 F.2d 186 (4th Cir. 1976)

It is sufficient that there be a joint venture.

United States v. Regilio, 669 F.2d 1169 (7th Cir. 1981)

United States v. Saimiento-Rozo, 676 F.2d 146 (5th Cir. 1982)

The joint venture on which admission of a coadventurer’s statement is based

need not be the same as the charged conspiracy, if any, and need not have

an illegal objective.

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

(3) The statement must have been made by a member of the conspiracy

To be admissible the statement must have been made by one who was a

member of the conspiracy at the time of the statement, but the declarant

need not be named in the indictment as a codefendant.

United States v. Jones, 542 F.2d 186 (4th Cir. 1976)

United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979)
78 Manual on Recurring Problems in Criminal Trials, fifth edition

(4) The defendant against whom the statement is offered must have

been a member of that conspiracy

The statement of an alleged coconspirator is not admissible against a defendant without proof of the latter’s membership in the conspiracy.

United States v. Nuccio, 373 F.2d 168 (2d Cir. 1967)

United States v. Morrow, 537 F.2d 120 (5th Cir. 1976)

It is admissible against one who joins the conspiracy after the statement

was made.

United States v. Holder, 652 F.2d 449 (5th Cir. 1981)

United States v. Coe, 718 F.2d 830 (7th Cir. 1983)

United States v. Harris, 729 F.2d 441 (7th Cir. 1984) (provided conspiracy was in

existence when statement was made)

United States v. Dial, 757 F.2d 163 (7th Cir. 1985)

United States v. Jackson, 757 F.2d 1486 (4th Cir. 1985)

United States v. Badalamenti, 794 F.2d 821 (2d Cir. 1986) (provided that before

joining, defendant was generally aware of what coconspirators had been doing and saying)

The fact that one party to a conversation is a government agent or informer

does not of itself preclude admission of statements by the party, if he or she

is a member of a conspiracy.

United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)

(5) The statement must have been made in furtherance of that

conspiracy

By the terms of Federal Rule of Evidence 801(d)(2)(E), a coconspirator’s

statement is not admissible unless it was made “in furtherance of the conspiracy.” All circuits recognize that this is a prerequisite to admissibility, but

they vary in the strictness with which they interpret it. Some courts are

more ready than others to find a statement to be in furtherance of a conspiracy. The following are rulings by many circuits on the “in furtherance”

requirement.

Mere conversation between coconspirators or merely narrative descriptions

were not “in furtherance.” To be admissible, declarations must further the

common objectives of the conspiracy.

United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979)

United States v. Singleton, 125 F.3d 1097 (7th Cir. 1997)

Rule 801(d)(2)(E) applies to statements made during the course of and in

furtherance of any enterprise, whether legal or illegal, in which the declarant

and defendant jointly participated.

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)
Part V. Evidence 79

Casual comments that neither were intended to further the conspiracy nor

had the effect of furthering it in any way were not “in furtherance.”

United States v. Green, 600 F.2d 154 (8th Cir. 1979)

A statement intended to convince a prospective purchaser that the declarant

had a good connection and meant business was “in furtherance.”

United States v. Paoli, 603 F.2d 1029 (2d Cir. 1979)

Statements of a coconspirator identifying a fellow coconspirator as his source

of narcotics were “in furtherance.”

United States v. Williams, 604 F.2d 1102 (8th Cir. 1979)

A statement that the defendant was a primary buyer of marijuana was “in

furtherance.”

United States v. Magee, 821 F.2d 234 (5th Cir. 1987)

Statements made to a girlfriend of one defendant in an attempt to induce

her to join him in his activity and to keep her abreast of its current status

were “in furtherance.”

United States v. Goodman, 605 F.2d 870 (5th Cir. 1979)

A mere conversation between coconspirators is not “in furtherance” of the

conspiracy.

United States v. McGuire, 608 F.2d 1028 (5th Cir. 1979)

Statements that are nothing more than casual conversations about past

events are not “in furtherance.”

United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980)

United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995)

A statement made for the purpose of inducing continued participation in a

conspiracy is “in furtherance.”

United States v. Anderson, 642 F.2d 281 (9th Cir. 1981)

Mere conversations between coconspirators or merely narrative declarations are not “in furtherance.” The statements must further the common

objectives of the conspiracy or set in motion transactions that are an integral part of the conspiracy. In short, they must assist the coconspirators in

achieving their objectives. Statements designed to induce a listener to join a

conspiracy are “in furtherance.” Mere casual admissions of culpability to

someone the declarant has individually decided to trust are not “in furtherance.”

United States v. Layton, 720 F.2d 548 (9th Cir. 1983)

Statements between coconspirators that provide reassurance, or serve to

maintain trust and cohesiveness among them or to inform each other of
80 Manual on Recurring Problems in Criminal Trials, fifth edition

the current status of a conspiracy are “in furtherance.”

United States v. Ammar, 714 F.2d 238 (3d Cir. 1983)

United States v. Salerno, 868 F.2d 524 (2d Cir. 1989)

United States v. Rastelli, 870 F.2d 822 (2d Cir. 1989)

Statements of reassurance that serve to maintain trust and cohesiveness or

to give information relative to the current status of a conspiracy, statements

identifying fellow conspirators, statements identifying a coconspirator as

the source of narcotics, and statements designed to induce a coconspirator

to act are all statements made “in furtherance.”

United States v. Lewis, 759 F.2d 1316 (8th Cir. 1985)

United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)

If a main objective of a conspiracy has not been attained or abandoned and

concealment is essential to the purpose of the objective, attempts to conceal

the conspiracy are “in furtherance.”

United States v. Howard, 770 F.2d 57 (6th Cir. 1985)

The statements of a declarant need not actually further the conspiracy to be

admissible. It is enough that they be intended to promote the conspiratorial

objectives. Statements that explain events important to the conspiracy in

order to facilitate the conspiracy are “in furtherance.”

United States v. Reyes, 798 F.2d 380 (10th Cir. 1986)

The “in furtherance” requirement is satisfied when a conspirator is apprised

of the progress of a conspiracy or when the statements are designed to induce his or her assistance.

United States v. Heinemann, 801 F.2d 86 (2d Cir. 1986)

United States v. Persico, 832 F.2d 705 (2d Cir. 1987)

Statements by a coconspirator are “in furtherance” if the statements prompt

the listener to respond in a way that facilitates the carrying out of criminal

activity.

United States v. Rahme, 813 F.2d 31 (2d Cir. 1987)

(6) The statement must have been made during the course of that

conspiracy

To be admissible a coconspirator’s statement must be made during the life

of the conspiracy.

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)

United States v. Brookins, 52 F.3d 615 (7th Cir. 1995)

United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)

United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995)

A statement made by one alleged coconspirator after his or her arrest may
Part V. Evidence 81

be admissible against that coconspirator but is not admissible against the

remaining coconspirators.

United States v. Di Rodio, 565 F.2d 573 (9th Cir. 1977)

United States v. Washington, 586 F.2d 1147 (7th Cir. 1978)

United States v. Taylor, 802 F.2d 1108 (9th Cir. 1986)

The arrest of one coconspirator does not necessarily terminate the conspiracy. The test is not the arrest of one or more of the coconspirators but

whether the remainder of the coconspirators are able to continue with the

conspiracy. The statements of coconspirators still at large are admissible.

United States v. Thompson, 533 F.2d 1006 (6th Cir. 1976)

United States v. Hamilton, 689 F.2d 1262 (6th Cir. 1982)

United States v. Taylor, 802 F.2d 1108 (9th Cir. 1986)

c. Court determines admissibility of coconspirator statements

The trial court alone determines the admissibility of coconspirator statements; the jury plays no role in that determination.

Bourjaily v. United States, 483 U.S. 171 (1987)

United States v. Chaney, 662 F.2d 1148 (5th Cir. 1981)

The court has more than one method to use when considering the admissibility of coconspirator statements. It does not have to require the prosecution to include statements in its pretrial Rule 801(d)(2)(E) proffer.

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

d. Standard of proof required for admissibility of statements

Bourjaily holds that coconspirator statements are admissible if they are

proven by a preponderance of the evidence.

e. Court controls order of proof

The Supreme Court in Bourjaily specifically declined to express an opinion

on the proper order of proof that a trial court should follow in concluding

that the preliminary facts relevant to admission of a coconspirator statement have been proven by a preponderance of the evidence. The order of

the admission of proof is within the discretion of the court. The court may

thus admit declarations by alleged coconspirators prior to the time that all

of the requirements for admissibility have been established by independent

evidence.

Bourjaily v. United States, 483 U.S. 171 (1987)

United States v. Smith, 519 F.2d 516 (9th Cir. 1975)

United States v. Perez, 658 F.2d 654 (9th Cir. 1981)

The court has the discretion to require the government to establish the ele-
82 Manual on Recurring Problems in Criminal Trials, fifth edition

ments of admissibility prior to receiving coconspirator statements, or to

admit the out-of-court statements on the condition that the prosecution

subsequently produce independent evidence of the conspiracy.

United States v. Smith, 519 F.2d 516 (9th Cir. 1975)

United States v. Vinson, 606 F.2d 149 (6th Cir. 1979)

United States v. Ricks, 639 F.2d 1305 (5th Cir. 1981)

United States v. Miller, 664 F.2d 826 (11th Cir. 1981)

It is preferable, whenever possible, that the government introduce its independent proof of conspiracy first, thereby avoiding the danger of injecting

inadmissible hearsay into the record in anticipation of proof that never

materializes.

United States v. Macklin, 573 F.2d 1046 (8th Cir. 1978)

United States v. James, 590 F.2d 575 (5th Cir. 1979)

United States v. Behrens, 689 F.2d 154 (10th Cir. 1982)

The court should at least require the government to preview the evidence

that it believes brings the evidence within the coconspirator rule before

allowing introduction of the coconspirator statement.

United States v. Shoffner, 826 F.2d 619 (7th Cir. 1987)

However, a pretrial hearing need not be held if it will be time-consuming

and repetitive.

United States v. Hernandez, 829 F.2d 988 (10th Cir. 1987)

The court does not have to require the prosecution to include coconspirator statements in its pretrial Rule 801(d)(2)(E) proffer.

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

f. Court must make findings relative to requisites of admissibility

At the conclusion of all the evidence, the court must on appropriate motion determine as a factual matter whether the prosecution has shown by a

preponderance of the evidence all of the requisites for the admissibility of a

coconspirator statement about which evidence has been received. If the court

concludes that the prosecution has not borne its burden, the statement may

not remain in evidence for consideration by the jury. In that event the judge

must decide whether the prejudice arising from the erroneous admission

can be cured by a cautionary instruction to the jury to disregard the statement or whether a mistrial must be declared.

United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977)

United States v. James, 590 F.2d 575 (5th Cir. 1979)

United States v. Gantt, 617 F.2d 831 (D.C. Cir. 1980)

United States v. Ciampaglia, 628 F.2d 632 (1st Cir. 1980)
Part V. Evidence 83

United States v. Fitts, 635 F.2d 664 (8th Cir. 1980)

United States v. Hewes, 729 F.2d 1302 (11th Cir. 1984)

It is error for the court to rule on the admissibility of coconspirator statements at the close of the government’s case.

United States v. Cerone, 830 F.2d 938 (8th Cir. 1987)

Even if counsel has not made a motion, it is wise policy for the trial court to

place in the record an explicit ruling that the government has established all

of the necessary requisites for the admissibility of the coconspirator statements that were admitted together, with such details as seem appropriate

under the circumstances.

United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir. 1979)

United States v. Fitts, 635 F.2d 664 (8th Cir. 1980)

United States v. Leon, 679 F.2d 534 (5th Cir. 1982)

g. In-court testimony of coconspirator is receivable

Although an out-of-court statement made by a coconspirator must meet

all the tests of admissibility, a coconspirator may testify in court as to all

aspects of the conspiracy.

United States v. Rivera Diaz, 538 F.2d 461 (1st Cir. 1976)

United States v. Smith, 692 F.2d 693 (10th Cir. 1982)

h. Effect of acquittal of conspiracy charge on admissibility of

coconspirator statements

If the court acquits an alleged coconspirator whose out-of-court hearsay

statements were admitted into evidence, some appellate courts have said

that the statements of the acquitted codefendant become inadmissible and

a new trial is required.

United States v. Ratcliffe, 550 F.2d 431 (9th Cir. 1976)

United States v. Davis, 578 F.2d 277 (10th Cir. 1978)

Others have held that the statements are admissible.

United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977)

United States v. Gil, 604 F.2d 546 (7th Cir. 1979)

United States v. Clark, 613 F.2d 391 (2d Cir. 1979)

i. Right of confrontation with regard to coconspirator

statements

No inquiry concerning the Confrontation Clause need be made concerning a proposed coconspirator statement if evidence has established that the

statement is in fact a coconspirator statement.

United States v. Inadi, 475 U.S. 387 (1986)
84 Manual on Recurring Problems in Criminal Trials, fifth edition

Bourjaily v. United States, 483 U.S. 171 (1987)

j. Coconspirator statements received in civil actions

Coconspirator statements are admissible in civil actions in the same manner as they are in criminal actions.

Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111 (5th Cir. 1980)

World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467 (10th Cir. 1985)

k. Spousal privilege with regard to coconspirator statements

When a husband and wife are engaged in a criminal conspiracy, a coconspirator statement of either is admissible.

United States v. Price, 577 F.2d 1356 (9th Cir. 1978)

l. Application to joint venturers

Coconspirator exceptions apply to statements by joint venturers.

United States v. Regilio, 669 F.2d 1169 (7th Cir. 1981)

United States v. Saimiento-Rozo, 676 F.2d 146 (5th Cir. 1982)

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

m. Pretrial disclosure of coconspirator statements to defendants

Defendants are not entitled to discover coconspirator statements before trial.

United States v. Roberts, 811 F.2d 257 (4th Cir. 1987)

United States v. Orr, 825 F.2d 1537 (11th Cir. 1987)

n. In-court presence of coconspirator declarant not needed

The coconspirator declarant need not be present for cross-examination as

a prerequisite for the admission of his or her out-of-court coconspirator

statement.

United States v. Inadi, 475 U.S. 387 (1986)

United States v. Caputo, 791 F.2d 37 (3d Cir. 1986)

United States v. Lopez, 803 F.2d 969 (9th Cir. 1986)

2. Identification testimony

Identification testimony is admissible provided that any pretrial identification procedure was not impermissibly suggestive or, if impermissibly suggestive, did not create a substantial risk of misidentification.
Part V. Evidence 85

a. Court must determine admissibility of identification testimony

Determining the admissibility of identification testimony is a two-step process:

1. The court must decide whether the out-of-court identification procedure was impermissibly suggestive.

2. If the procedure is found to have been impermissibly suggestive, the

court must then determine whether, considering the totality of circumstances, the suggestive procedure created a substantial risk of

misidentification.

If the answer to either of these inquiries is negative, testimony as to the

identification is admissible.

Neil v. Biggers, 409 U.S. 188 (1972)

Manson v. Brathwaite, 432 U.S. 98 (1977)

United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976)

United States v. Freie, 545 F.2d 1217 (9th Cir. 1976)

United States v. Milhollan, 599 F.2d 518 (3d Cir. 1979)

United States v. Hadley, 671 F.2d 1112 (8th Cir. 1982)

United States v. Hamilton, 684 F.2d 380 (6th Cir. 1982)

United States v. Briley, 726 F.2d 1301 (8th Cir. 1984)

Reliability is the linchpin in determining the admissibility of identification

testimony.

Manson v. Brathwaite, 432 U.S. 98 (1977)

In assessing the reliability of the identification testimony in light of the suggestive identification procedure, the court must consider

1. the opportunity of the witness to observe the criminal at the time of

the crime;

2. the degree of attention of the witness at the time of the crime;

3. the accuracy of the witness’s prior description of the criminal;

4. the level of certainty demonstrated by the witness at pretrial confrontation; and

5. the length of time between the crime and the pretrial confrontation.

Manson v. Brathwaite, 432 U.S. 98 (1977)

United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983)

Velez v. Schmer, 724 F.2d 249 (1st Cir. 1984)

United States v. Woolery, 735 F.2d 818 (5th Cir. 1984)
86 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Lineup

A lineup is the preferable means of identification.

United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976)

The defendant may be compelled by force, if necessary, to attend a lineup.

In re Maguire, 571 F.2d 675 (1st Cir. 1978)

Even though there is no constitutional right to compel the government to

conduct a lineup, the court can and should compel the government to do

so if the interests of justice and fair play require it.

United States v. Key, 717 F.2d 1206 (8th Cir. 1983)

A defendant does not, however, have a right to demand a lineup.

United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976)

United States v. Marchand, 564 F.2d 983 (2d Cir. 1977)

Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980)

The decision whether to grant a defendant’s motion for a lineup is within

the discretion of the trial judge.

United States v. Robertson, 606 F.2d 853 (9th Cir. 1979)

United States v. Harvey, 756 F.2d 636 (8th Cir. 1985)

c. Identification in court without prior lineup is disfavored

An in-court identification can itself be impermissibly suggestive, for example, if a defendant is the only black person in the courtroom and is seated

next to defense counsel at trial.

United States v. Archibald, 734 F.2d 938 (2d Cir. 1984)

United States v. Rogers, 126 F.3d 655 (5th Cir. 1997)

When informed that identification is a critical issue in a case, the court

would be well-advised to direct the government to conduct an out-of-court

lineup.

United States v. Brown, 699 F.2d 585 (2d Cir. 1983)

Defense counsel may seek the court’s permission to seat two or more persons at counsel’s table, to have no one at counsel’s table, or to have a number of individuals resembling the defendant in court.

United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981)

There is no constitutional entitlement to an in-court lineup or other particular method of lessening the suggestiveness of in-court identification,

such as seating the defendant elsewhere in the room. Such matters are within

the discretion of the trial court.

United States v. Domina, 784 F.2d 1361 (9th Cir. 1986) (a dissent in this case

speaks about how prejudicial an in-court identification is)
Part V. Evidence 87

United States v. Emanuele, 51 F.3d 1123 (3d Cir. 1995) (court found it an abuse

of discretion to admit in-court identification by a witness who saw defendant

in shackles accompanied by U.S. marshals)

United States v. Davis, 103 F.3d 660 (8th Cir. 1996) (in-court identification of

defendant found not to be an abuse of discretion because other circumstances

indicated witness’s testimony was reliable)

To ensure the accuracy and reliability of an in-court identification by an

eyewitness, procedures such as placing the defendant in the courtroom audience or staging an in-court lineup should be employed wherever necessary.

United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985)

Prior to a proposed in-court identification, the court may permit the defendant to sit in the back of the courtroom with other persons of similar

appearance.

Government of Virgin Islands v. Petersen, 507 F.2d 898 (3d Cir. 1975)

The substitution of another person for the defendant at counsel’s table prior

to an in-court identification is unethical.

United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981)

d. Single-photograph identification or single-person show-up is

suspect

Display of a single photograph of the suspect alone is one of the most suggestive and therefore most objectionable methods of pretrial identification.

Manson v. Brathwaite, 432 U.S. 98 (1977)

Israel v. Odom, 521 F.2d 1370 (7th Cir. 1975)

United States v. Kimbrough, 528 F.2d 1242 (7th Cir. 1976)

Testimony relating to a single-person show-up immediately after a crime

occurs may be admissible.

United States v. Williams, 626 F.2d 697 (9th Cir. 1980)

United States v. Rice, 652 F.2d 521 (5th Cir. 1981)

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985)

e. Witness may testify in court to out-of-court identification of

accused

According to Federal Rule of Evidence 801(d)(1)(C), an identifying statement is not hearsay if the declarant testifies at trial to an identification that

he or she has previously made, after perceiving the person identified, and is

subject to cross-examination concerning the testimony.

A witness may be permitted to testify that he or she previously identified a
88 Manual on Recurring Problems in Criminal Trials, fifth edition

photograph of the defendant and may be allowed to identify at trial the

particular photograph he or she identified during the pretrial investigation.

Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977)

A witness may testify to a pretrial photo-spread identification even though

he or she is unable to make a positive in-court identification at trial.

Government of Virgin Islands v. Petersen, 507 F.2d 898 (3d Cir. 1975)

United States v. Keller, 512 F.2d 182 (3d Cir. 1975)

Adail v. Wyrick, 711 F.2d 99 (8th Cir. 1983)

A witness who has identified a defendant from a photo spread is properly

permitted to identify the defendant in court at trial.

United States v. Givens, 767 F.2d 574 (9th Cir. 1985)

f. Equivocal identifications

A witness is permitted to identify a certain photograph of the defendant in

court at trial and testify to selecting that photograph from a photo spread

as “resembling” the perpetrator of the crime. Although a prior identification may be equivocal, the jury is entitled to give it such weight as it will

after hearing the testimony of the witness under direct and cross-examination.

United States v. Famulari, 447 F.2d 1377 (2d Cir. 1971)

United States v. Hudson, 564 F.2d 1377 (9th Cir. 1977)

The fact that an identification in court is less than positive does not render

it inadmissible.

United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978)

Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979), rev’d on other grounds, 646 F.2d

873 (5th Cir. 1980)

g. Mug shots are inadmissible

Admission of mug shots is in conflict with rules of evidence prohibiting the

introduction of testimony regarding a defendant’s bad character or past

criminal record.

United States v. Sawyer, 504 F.2d 878 (5th Cir. 1974)

United States ex rel. Bleimehl v. Cannon, 525 F.2d 414 (7th Cir. 1975)

United States v. Rixner, 548 F.2d 1224 (5th Cir. 1977)

If the introduction of mug shots is unavoidable, steps must be taken to

minimize the prejudicial impact on the defendant.

United States v. Carrillo-Figueroa, 34 F.3d 33 (1st Cir. 1994)
Part V. Evidence 89

h. Defendant entitled to cautionary jury instruction on

identification testimony

Upon request, the defendant is entitled to a special instruction to the jury

on the issue of identification, which emphasizes the dangers inherent in

identification testimony, the need to scrutinize such evidence with care, and

the need to find the circumstances of the identification convincing beyond

a reasonable doubt before returning a verdict of guilty.

United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)

United States v. Marchand, 564 F.2d 983 (2d Cir. 1977)

United States v. Kavanagh, 572 F.2d 9 (1st Cir. 1978)

i. Admissibility of expert testimony relative to identification of

accused

The trial court has discretion to admit identification testimony by an expert witness if the expert proposes to testify as to identification features not

within the everyday experience of laypersons.

United States v. Burke, 506 F.2d 1165 (9th Cir. 1974)

United States v. Green, 525 F.2d 386 (8th Cir. 1975)

United States v. Collins, 559 F.2d 561 (9th Cir. 1977)

United States v. Sellers, 566 F.2d 884 (4th Cir. 1977) (court held, contrary to

general rule, that expert could point out similarities and differences between

features of defendant and those of person shown in photograph)

The trend is to admit expert testimony on eyewitness identification issues

under certain circumstances that should be examined on a case-by-case

basis. The threshold test is set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See also Kumho Tire Co. v. Carmichael, 526

U.S. 137 (1999).

United States v. Rincon, 28 F.3d 921 (9th Cir. 1994)

United States v. Brien, 59 F.3d 274 (1st Cir. 1995)

United States v. Kime, 99 F.3d 870 (8th Cir. 1996)

United States v. Smith, 122 F.3d 1355 (11th Cir. 1997)

United States v. Smith, 156 F.3d 1046 (10th Cir. 1998)

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999)

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000)

Even in cases after Daubert, otherwise admissible evidence may be properly

excluded under Federal Rule of Evidence 403 if the court is concerned that

the expert testimony would confuse and mislead the jury.

United States v. Dorsey, 45 F.3d 809 (4th Cir. 1995)
90 Manual on Recurring Problems in Criminal Trials, fifth edition

j. Admissibility of lay opinion testimony relative to identification

of accused

Lay opinion testimony identifying a defendant in surveillance photographs

is admissible if the witness is more likely to identify the defendant correctly

than is the jury.

United States v. La Pierre, 998 F.2d 1460 (9th Cir. 1993)

United States v. Jackman, 48 F.3d 1 (1st Cir. 1995)

United States v. Ellis, 121 F.3d 908 (4th Cir. 1997)

United States v. Pierce, 136 F.3d 770 (11th Cir. 1998)

k. Identification of defendant by law enforcement officers

Identification of the defendant by a police officer or by a parole officer is to

be avoided, if possible, because those individuals cannot be fully cross-examined without the risk of eliciting testimony regarding prior criminal activity of the defendant.

United States v. Butcher, 557 F.2d 666 (9th Cir. 1977)

United States v. Farnsworth, 729 F.2d 1158 (8th Cir. 1984)

But see United States v. Henderson, 68 F.3d 323 (9th Cir. 1995)

l. Defendant must be identified at trial as being perpetrator of the

crime

In every criminal case, the government is required to prove the identity of

the person who committed the crime. To support a conviction, the government must present evidence at trial that the defendant was the perpetrator of the charged crime. This is generally provided by an in-court identification of the accused; however, it can also be inferred from other evidence.

United States v. Darrell, 629 F.2d 1089 (5th Cir. 1980)

United States v. Weed, 689 F.2d 752 (7th Cir. 1982)

United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995)

For example, it is not necessary to have an in-court identification if there is

testimony of a pretrial identification of the defendant as the perpetrator of

the crime.

United States v. Singleton, 702 F.2d 1159 (D.C. Cir. 1983)

3. Tape recordings of conversations

a. Tape recordings may be admitted into evidence

It is within the court’s discretion to admit tape recordings of telephone

conversations.
Part V. Evidence 91

United States v. Bastone, 526 F.2d 971 (7th Cir. 1975), overruled on other grounds

by United States v. Read, 658 F.2d 1225 (7th Cir. 1981)

Tapes are to be admitted only if (1) they are authentic, accurate, and trustworthy, and (2) they are audible and comprehensible enough for a jury to

consider them.

United States v. Slade, 627 F.2d 293 (D.C. Cir. 1980)

United States v. Robinson, 707 F.2d 872 (6th Cir. 1983)

Before admitting tapes, the court should require the government to produce evidence concerning the competency of the operator, the fidelity of

the equipment, the absence of any alterations in the tapes, and the identities of the speakers.

United States v. Biggins, 551 F.2d 64 (5th Cir. 1977)

A tape recording is generally admissible unless the unintelligible portions

are so substantial that the recording as a whole is untrustworthy.

United States v. Lane, 514 F.2d 22 (9th Cir. 1975)

United States v. Jones, 540 F.2d 465 (10th Cir. 1976)

United States v. Robinson, 707 F.2d 872 (6th Cir. 1983)

United States v. Zambrana, 864 F.2d 494 (7th Cir. 1988)

Admission of tape recordings containing inaudible portions is a matter

within the discretion of the trial court.

United States v. Williams, 548 F.2d 228 (8th Cir. 1977)

Even if the tape has poor audibility, it is admissible if enough of the conversation is audible and relevant to the purpose for which it is admitted.

United States v. Nashawaty, 571 F.2d 71 (1st Cir. 1978)

United States v. Greenfield, 574 F.2d 305 (5th Cir. 1978)

See supra at 30–32.

b. Pretrial procedure with regard to tape recordings

The trial court may condition the use of tape recordings at trial on the

advance preparation of an accurate transcript.

United States v. Gerry, 515 F.2d 130 (2d Cir. 1975)

United States v. Jones, 540 F.2d 465 (10th Cir. 1976)

When a transcript is to be used to supplement tape recordings, the parties

should first seek to arrive at a stipulated transcript. If the parties cannot

agree, each side should produce its own transcript or its own version of

disputed portions of the tape.

United States v. Rochan, 563 F.2d 1246 (5th Cir. 1977)

United States v. Slade, 627 F.2d 293 (D.C. Cir. 1980)

United States v. DeLeon, 187 F.3d 60 (1st Cir. 1999)
92 Manual on Recurring Problems in Criminal Trials, fifth edition

A pretrial conference is the preferred manner of obtaining a stipulation as

to the accuracy of a transcript of a recorded conversation.

United States v. Onori, 535 F.2d 938 (5th Cir. 1976)

It is preferable that tape-recorded conversations between the defendant and

a government informant be edited to exclude the defendant’s use of racial

epithets.

United States v. Manzella, 782 F.2d 533 (5th Cir. 1986)

c. Court may permit jurors to have transcripts as they listen to

tape recordings

It is within the discretion of the court to permit jurors to have transcripts as

they hear tapes played.

United States v. John, 508 F.2d 1134 (8th Cir. 1975)

United States v. Slade, 627 F.2d 293 (D.C. Cir. 1980)

United States v. Brown, 872 F.2d 385 (11th Cir. 1989)

United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997)

If jurors are permitted to have transcripts, the court must give an instruction

to the effect that it is the words that they hear that are decisive, not those

that they read in the transcripts.

United States v. Hassell, 547 F.2d 1048 (8th Cir. 1977)

United States v. Slade, 627 F.2d 293 (D.C. Cir. 1980)

See supra at 30–33.

d. Courtroom procedure with regard to tape recordings

If transcripts are to be used, they should be passed out to jurors immediately prior to the playing of the tapes and then collected immediately after

the tapes have been played.

If the defense and prosecution disagree on the contents of portions of a

tape, the jurors may be given transcripts of both versions.

United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975)

United States v. Zambrana, 864 F.2d 494 (7th Cir. 1988)

United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997)

The tape may be played as the jurors are looking at one transcript and replayed as the jurors are looking at another transcript.

United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975)
Part V. Evidence 93

e. Jurors may rehear tape recordings after they have begun

deliberations

It is within the discretion of the trial court to replay tapes at the request of

the jury after it has retired for deliberations.

United States v. Williams, 548 F.2d 228 (8th Cir. 1977)

United States v. Zepeda-Santana, 569 F.2d 1386 (5th Cir. 1978)

United States v. Scaife, 749 F.2d 338 (6th Cir. 1984) (provided tapes have been

admitted as exhibits)

It is also within the court’s discretion to permit jurors to refer to transcripts

during the replaying of tapes.

United States v. Dorn, 561 F.2d 1252 (7th Cir. 1977)

See supra at 30–33.

f. Tape recordings and transcripts of tape recordings may be taken

to the jury room

The court in its discretion may admit properly authenticated transcripts of

tape recordings as evidence and permit them to be taken to the jury room

along with the rest of the exhibits.

United States v. Rengifo, 789 F.2d 975 (1st Cir. 1986)

United States v. Ulerio, 859 F.2d 1144 (2d Cir. 1988) (English translations of

conversations in Spanish)

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994)

United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997)

If a transcript of a tape recording is to be used during deliberations, it should

be admitted into evidence; appropriate instructions regarding the jury’s use

of the transcript should be given.

United States v. Berry, 92 F.3d 597 (7th Cir. 1996)

United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997)

The court has discretion to permit the jury to take to the jury room any

tape recordings that have been admitted as exhibits during the trial. Recordings that have not been admitted as exhibits may not be taken to the

jury room.

United States v. Scaife, 749 F.2d 338 (6th Cir. 1984)

If the accuracy of a transcript cannot be verified, it is an abuse of discretion

to permit jurors to read it.

United States v. Robinson, 707 F.2d 872 (6th Cir. 1983)

But see United States v. DeLeon, 187 F.3d 60 (1st Cir. 1999) (defendant failed to

object to unauthenticated transcript)

See supra at 30–33.
94 Manual on Recurring Problems in Criminal Trials, fifth edition

4. Balancing probative value of evidence against its

prejudicial effect

Federal Rules of Evidence 403, 609(a), and 609(b) require the trial court to

balance the probative value of evidence against its prejudicial effect.

a. Balancing under Rule 403

According to Rule 403, evidence, although relevant, “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence.”

(1) Balancing within discretion of trial court

The balancing required by Rule 403 is entrusted to the broad discretion of

the trial court.

United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)

United States v. Kasto, 584 F.2d 268 (8th Cir. 1978)

United States v. O’Connor, 874 F.2d 483 (7th Cir. 1989)

(2) Criteria to be applied

“Unfair prejudice” as stated in Rule 403 is defined in the Notes of the Advisory Committee on the rule as “an undue tendency to suggest decision on

an improper basis, commonly, though not necessarily, an emotional one.”

United States v. Aims Back, 588 F.2d 1283 (9th Cir. 1979)

United States v. Grassi, 602 F.2d 1192 (5th Cir. 1979)

United States v. Vretta, 790 F.2d 651 (7th Cir. 1986)

The exclusion of evidence under Rule 403 is an extraordinary remedy that

is to be invoked only sparingly.

United States v. Thevis, 665 F.2d 616 (5th Cir. 1982)

United States v. Betancourt, 734 F.2d 750 (11th Cir. 1984)

United States v. Cole, 755 F.2d 748 (11th Cir. 1985)

For evidence to be excluded, its prejudicial effect must substantially outweigh its probative value.

United States v. Hans, 684 F.2d 343 (6th Cir. 1982)

United States v. Smith, 685 F.2d 1293 (11th Cir. 1982)

United States v. Medina, 755 F.2d 1269 (7th Cir. 1985)

United States v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998) (evidence of flight)

A major function of Rule 403 is to exclude matter of scant or cumulative
Part V. Evidence 95

probative force, dragged in by its heels for the sake of its prejudicial effect.

United States v. Roark, 753 F.2d 991 (11th Cir. 1985)

Evidence that is otherwise admissible is not rendered inadmissible because

it is strongly probative on an essential element of an offense.

United States v. Day, 591 F.2d 861 (D.C. Cir. 1978)

United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980)

In determining whether the probative value of evidence is substantially

outweighed by the danger of unfair prejudice, it is a sound rule that the

balance should generally be struck in favor of admission when the evidence

indicates a close relationship to the offense charged. The necessity of the

evidence to prove the government’s case is a factor to be used in weighing

the evidence’s admissibility under the balancing test. In so weighing the

evidence, the court should be mindful of the heavy burden the government

bears to prove its case beyond a reasonable doubt and should not unduly

restrict the government in the proof of its case.

United States v. Day, 591 F.2d 861 (D.C. Cir. 1978)

(3) Timing

It is well for the trial court to delay the admission of evidence falling within

Rule 403 until virtually all of the other proof has been introduced, as the

court is then in a better position to weigh the probative worth of the evidence against the prejudicial effect of it.

United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)

(4) Court’s reasoning should be placed on the record

If the trial court decides to exclude relevant evidence by invoking Rule 403,

it should confront the problem explicitly, acknowledging and weighing on

the record both the prejudicial effect and the probative value of the proposed evidence.

United States v. Dwyer, 539 F.2d 924 (2d Cir. 1976)

The court should articulate the factors considered in the balancing of the

probative value against the unfair prejudice.

United States v. Lebovitz, 669 F.2d 894 (3d Cir. 1982)

(5) Minimizing prejudice

The prejudicial effect of evidence may be minimized by the elimination of

inflammatory or unnecessary details and by cautionary instructions delivered by the court.

United States v. Benton, 637 F.2d 1052 (5th Cir. 1981)
96 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Balancing under Rule 609(a)

According to Rule 609(a),

[f]or the purpose of attacking the credibility of a witness, (1) evidence

that a witness other than the accused has been convicted of a crime shall

be admitted, subject to Rule 403, if the crime was punishable by death or

imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of

such a crime shall be admitted if the court determines that the probative

value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime

shall be admitted if it involved dishonesty or false statement, regardless of

the punishment.

The Advisory Committee Notes on the rule state that the 1990 amendment

to Rule 609(a) “resolves an ambiguity as to the relationship of Rules 609

and 403 with respect to impeachment of witnesses other than the criminal

defendant . . . . The amendment does not disturb the special balancing test

for the criminal defendant who chooses to testify.” The notes further state

that “[t]he amendment applies the general balancing test of Rule 403 to

protect all litigants against unfair impeachment of witnesses. The balancing test protects civil litigants, the government in criminal cases, and the

defendant in a criminal case who calls other witnesses.”

See United States v. Figueroa, 976 F.2d 1446 (1st Cir. 1992)

(1) Timing of rulings on Rule 609(a) matters is discretionary

The trial court has broad discretion as to the timing of its rulings relating to

the admissibility of the defendant’s prior convictions under Rule 609(a).

United States v. Oakes, 565 F.2d 170 (1st Cir. 1977)

United States v. Tercero, 640 F.2d 190 (9th Cir. 1980)

United States v. Fay, 668 F.2d 375 (8th Cir. 1981)

Several decisions have suggested that an advance ruling regarding the admissibility of the defendant’s prior convictions is desirable, where feasible,

so that the defendant can make an informed decision whether to testify.

United States v. Oakes, 565 F.2d 170 (1st Cir. 1977)

United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), rev’d on other

grounds, 469 U.S. 38 (1984)

United States v. Burkhead, 646 F.2d 1283 (8th Cir. 1981)

United States v. Fay, 668 F.2d 375 (8th Cir. 1981)

Other decisions have suggested that the trial court is better able to weigh a

prior conviction’s probative value against its prejudicial effect after hearing

the direct testimony of the defendant.

Luce v. United States, 469 U.S. 38 (1984)
Part V. Evidence 97

Cf. Ohler v. United States, 120 S. Ct. 1851 (2000) (a defendant who preemptively introduces evidence of a prior conviction on direct examination

cannot claim on appeal that it was error to admit such evidence)

United States v. Witschner, 624 F.2d 840 (8th Cir. 1980)

(2) Crimes of dishonesty or false statement

Crimes involving dishonesty or false statement include perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense the commission of which involves some element

of deceit, untruthfulness, or falsification bearing on the defendant’s propensity to testify truthfully.

United States v. Dixon, 547 F.2d 1079 (9th Cir. 1976)

If it is not apparent on its face that a crime involved dishonesty, the court

must hold a hearing to determine whether the crime did in fact involve

dishonesty.

United States v. Crawford, 613 F.2d 1045 (D.C. Cir. 1979)

United States v. Barnes, 622 F.2d 107 (5th Cir. 1980)

(3) Criteria to be applied in balancing

When the defendant is the witness, the factors that a district court should

consider in balancing a prior conviction’s probative value against its prejudicial effect are (1) the impeachment value of the prior crime; (2) the temporal relationship between the conviction and the subsequent history of

the defendant; (3) the similarity between the prior offense and the offense

charged; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue at trial.

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985)

See United States v. Alexander, 43 F.3d 1477 (9th Cir. 1995)

(4) Danger in admitting proof of conviction of same or similar crime

to that charged

If the prior conviction is for the same offense as that charged, or an offense

similar to that charged, particularly careful consideration is required before

the conviction may be admitted.

United States v. Ortiz, 553 F.2d 782 (2d Cir. 1977)

United States v. Martinez, 555 F.2d 1273 (5th Cir. 1977)

Evidence of a prior conviction for the very crime for which a defendant is

on trial may be devastating in its potential impact on a jury. There is a

substantial risk that all exculpatory evidence will be overwhelmed by a jury’s human tendency to draw a conclusion that is impermissible in law:
98 Manual on Recurring Problems in Criminal Trials, fifth edition

because the defendant did it before, he or she must have done it again.

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985)

(5) Trial court should place its reasoning on the record

The trial court should make its determination after a hearing on the record

and should make an explicit finding that the evidence’s probative value

outweighs or does not outweigh its prejudicial effect on the defendant.

United States v. Preston, 608 F.2d 626 (5th Cir. 1979)

United States v. Crawford, 613 F.2d 1045 (D.C. Cir. 1979)

United States v. Fountain, 642 F.2d 1083 (7th Cir. 1981)

United States v. Walker, 817 F.2d 461 (8th Cir. 1987)

Some circuits do not require an on-the-record balancing.

United States v. Rosales, 680 F.2d 1304 (10th Cir. 1981)

United States v. Grandmont, 680 F.2d 867 (1st Cir. 1982)

(6) Evidence admissible with regard to conviction of witness

Questioning about a prior conviction of a witness is limited to the fact of

conviction, the date of conviction, and the nature of the offense.

United States v. Gaertner, 705 F.2d 210 (7th Cir. 1983)

United States v. Beckett, 706 F.2d 519 (5th Cir. 1983)

United States v. Castro, 788 F.2d 1240 (7th Cir. 1986)

Cross-examination is limited to the facts admissible on direct examination.

United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980)

(7) Court must instruct jury regarding proper use of prior-conviction

evidence

In admitting evidence of prior convictions of a defendant, the court should

instruct the jury that the evidence is to be considered only on the issue of

credibility, and not as substantive evidence of guilt.

Murray v. Superintendent, Kentucky State Penitentiary, 651 F.2d 451 (6th Cir.

1981)

(8) Admissibility of prior conviction pending appeal

A prior conviction is admissible even though the conviction is pending appeal.

United States v. Rose, 526 F.2d 745 (8th Cir. 1975)

United States v. Klayer, 707 F.2d 892 (6th Cir. 1983)
Part V. Evidence 99

(9) Court may place conditions on the exclusion of a prior conviction

The court may exclude proof of a prior conviction on the condition that

the defendant not represent that he or she has never been in trouble with

the law or that he or she has always been a law-abiding citizen.

United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), overruled on other

grounds by Luce v. United States, 469 U.S. 381 (1984)

See also United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995)

c. Balancing under Rule 609(b)

Under Federal Rule of Evidence 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the

conviction or the date of the release of the witness from the confinement

imposed for that conviction, whichever is later, unless the court determines

that, in the interests of justice, the conviction’s probative value, supported

by specific facts and circumstances, substantially outweighs its prejudicial

effect.

(1) Such convictions are only rarely admissible

Convictions more than ten years old are to be admitted rarely and only

under exceptional circumstances.

United States v. Shapiro, 565 F.2d 479 (7th Cir. 1977)

United States v. Cavender, 578 F.2d 528 (4th Cir. 1978)

There is in effect a presumption in the rule that convictions more than ten

years old are more prejudicial than helpful and should be excluded.

United States v. Sims, 588 F.2d 1145 (6th Cir. 1978)

(2) Court’s reasoning must be placed on the record if it departs from

the ten-year prohibition

If the trial court departs from the ten-year prohibition, it must make specific findings on the record as to the particular facts and circumstances it

has considered in determining that the conviction’s probative value substantially outweighs its prejudicial impact.

United States v. Cavender, 578 F.2d 528 (4th Cir. 1978)

United States v. Sims, 588 F.2d 1145 (6th Cir. 1978)

United States v. Brown, 603 F.2d 1022 (1st Cir. 1979)

United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980)

United States v. Portillo, 699 F.2d 461 (9th Cir. 1982)

Contra United States v. Holmes, 822 F.2d 802 (8th Cir. 1987)

The court must find not merely that the probative value of the conviction

outweighs the prejudicial effect but that the probative value substantially
100 Manual on Recurring Problems in Criminal Trials, fifth edition

outweighs the prejudicial effect.

United States v. Cavender, 578 F.2d 528 (4th Cir. 1978)

5. Receipt of expert testimony

a. Qualification of expert witness

The trial court has broad discretion to determine whether a proffered expert qualifies as an expert.

United States v. Tomasian, 784 F.2d 782 (7th Cir. 1986)

Davis v. United States, 865 F.2d 164 (8th Cir. 1988)

United States v. Daccarett, 6 F.3d 37 (2d Cir. 1993)

United States v. Willey, 57 F.3d 1374 (5th Cir. 1995)

b. Determination of admissibility of expert testimony

Federal Rule of Evidence 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise . . . .

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the

Supreme Court held that admissibility of expert testimony is governed by

Rule 702 rather than the previous Frye test. Under Daubert, a trial judge

faced with a proffer of expert scientific testimony must determine at the

outset, pursuant to Federal Rule of Evidence 104(a), whether the expert is

proposing to testify to (1) scientific knowledge that (2) will assist the trier

of fact in understanding or determining a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. Pertinent considerations

in making this determination are whether a theory or technique can be

(and has been) tested; whether it has been subjected to peer review and

publication; the known or potential rate of error; and whether the theory

or technique is generally accepted.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court ruled that

the Daubert “gatekeeping” obligation applies not only to scientific testimony

but to all expert testimony. The gatekeeping inquiry must be tied to the

particular facts, and the Daubert factors may or may not be helpful in assessing reliability in a specific case.

Appellate decisions applying Daubert include the following:

United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993) (DNA)
Part V. Evidence 101

United States v. Bonds, 12 F.3d 540 (6th Cir. 1993) (DNA)

United States v. Rincon, 28 F.3d 921 (9th Cir. 1994) (eyewitness identification)

United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994) (DNA)

United States v. Davis, 40 F.3d 1069 (10th Cir. 1994) (DNA)

United States v. Dorsey, 45 F.3d 809 (4th Cir. 1995) (forensic anthropology)

United States v. Velasquez, 64 F.3d 844 (3d Cir. 1995) (handwriting analysis)

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999) (expert eyewitness

testimony)

United States v. Paul, 175 F.3d 906 (11th Cir. 1999) (handwriting analysis)

United States v. Salimonu, 182 F.3d 63 (1st Cir. 1999) (voice identification)

United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (police gang expert)

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000) (expert eyewitness testimony)

See generally Federal Judicial Center, Reference Manual on Scientific Evidence

(2d ed. 2000)

In making an admissibility determination, a judge must be mindful of other

evidence rules, such as Rule 403, which permits the exclusion of relevant

evidence “if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)

United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993)

United States v. Bonds, 12 F.3d 540 (6th Cir. 1993)

United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994)

Under Daubert, the court can take judicial notice of the reliability and scientific validity of the general theory and techniques of DNA profiling. (If

new techniques are offered, however, the court must hold an in limine hearing.)

United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993)

In Martinez, the Eighth Circuit held that even though judicial notice may

be taken, this does not mean that testimony concerning DNA profiling is

automatically admissible. There must be a preliminary showing that the

expert properly performed a reliable methodology in arriving at his or her
102 Manual on Recurring Problems in Criminal Trials, fifth edition

opinion. The court should make an initial inquiry into the particular expert’s

application of the scientific principle or methodology in question. The court

should require the testifying expert to provide affidavits attesting that he or

she properly performed the protocols involved in DNA profiling. If the opponent of the evidence challenges the application of the protocols in a particular case, the court must determine whether the expert erred in applying

the protocols, and, if so, whether such error so infected the procedure as to

make the results unreliable. An alleged error in the application of a reliable

methodology should provide the basis for exclusion of the opinion only if

that error negates the basis for the reliability of the principle itself.

See also United States v. Davis, 40 F.3d 1069 (10th Cir. 1994); United States v.

Chischilly, 30 F.3d 1144 (9th Cir. 1994)

A trial judge’s expanded role in assessing the admissibility of scientific expert testimony under Daubert does not allow the judge to usurp the jury’s

function in determining the sufficiency of the evidence already admitted.

In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124 (2d Cir. 1995)

c. Expert opinion testimony

Federal Rule of Evidence 701 requires that a lay witness’s testimony be scrutinized under the rules regulating expert opinion to the extent that the

witness’s testimony is based on scientific, technical, or other specialized

knowledge within the scope of Rule 702. This scrutiny eliminates the risk of

counsel’s evading the reliability requirements of Rule 702 by proffering an

expert as a lay witness.

Under Federal Rule of Evidence 703, if facts or data on which the expert

bases an opinion or inference are of a type reasonably relied on by experts

in the particular field in forming opinions or inferences, the facts or data

need not be admissible in evidence.

Davis v. United States, 865 F.2d 164 (8th Cir. 1988)

United States v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1989), overruled on other

grounds by United States v. Price, 76 F.3d 526 (1996)

United States v. Smith, 869 F.2d 348 (7th Cir. 1989)

Federal Rule of Evidence 703 makes available to the expert all of the data

that an expert in the witness’s area of expertise would normally rely on in

forming an opinion, without requiring that such data be admissible in evidence. Under the rule the expert is free to give an opinion relying on the

types of data an expert in the witness’s area of expertise would normally

use in forming an opinion.

United States v. Smith, 869 F.2d 348 (7th Cir. 1989)

United States v. West, 58 F.3d 133 (5th Cir. 1995)
Part V. Evidence 103

At the defendant’s request, the government discloses, in a written summary,

the expert testimony it intends to use under Rules 702, 703, and 705 during

its case-in-chief. The summary must describe the witnesses’ opinions, the

bases and reasons for those opinions, and the witnesses’ qualifications. A

defendant who makes such a request must provide reciprocal disclosure of

his or her expert witnesses’ testimony to the government.

Fed. R. Crim. P. 16(a)(1)(E), (b)(1)(C).

d. Evaluation of reasonable reliance

When an expert’s opinion is based on facts not admissible in evidence, the

court should make a threshold factual inquiry to determine whether the

data providing the basis for the opinion are of a type reasonably relied on

by experts in that field to form such opinions, and in making such an inquiry, the court may inquire into the relevance of the data as well as their

reliability.

Greenwood Util. Comm’n v. Mississippi Power Co., 751 F.2d 1484 (5th Cir. 1985)

The judge, not the expert, makes the determination of reasonable reliance

under Rule 703. In making an independent evaluation of reasonableness,

the trial judge should assess whether there are good grounds on which to

find the data reliable.

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)

Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir. 1996)

Because the question of reliability is an admissibility requirement governed

by Rule 104(a), a proponent must do more than simply make a prima facie

case on reliability. Although a proponent does not have to prove that the

proffered expert testimony is correct, he or she must prove by a preponderance of the evidence that the testimony is reliable.

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)

In admitting expert testimony based on inadmissible evidence, a court does

not have to make an explicit finding that the underlying sources of information used by the expert are trustworthy.

United States v. Locascio, 6 F.3d 924 (2d Cir. 1993)

e. Opinion testimony on ultimate issue

Federal Rule of Evidence 704(a) provides that testimony in the form of an

opinion is not objectionable because it embraces an ultimate issue to be

decided by the trier of fact. One purpose of the Federal Rules of Evidence

was to make opinion evidence admissible if it would be of assistance to the

trier of fact.
104 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Scavo, 593 F.2d 837 (8th Cir. 1979)

United States v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1989), overruled on other

grounds by United States v. Price, 76 F.3d 526 (3d Cir. 1996) (permitting expert testimony on roles played by defendants in narcotics ring)

United States v. Sheffey, 57 F.3d 1419 (6th Cir. 1995)

Federal Rule of Evidence 704(b) forbids expert testimony as to whether the

defendant had the requisite mental state or condition constituting an element of the crime charged. Decisions dealing with expert testimony under

this rule include the following:

United States v. West, 962 F.2d 1243 (7th Cir. 1992)

United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992)

United States v. Thigpen, 4 F.3d 1573 (11th Cir. 1993) (en banc)

United States v. Valle, 72 F.3d 210 (1st Cir. 1995)

United States v. Smart, 98 F.3d 1379 (D.C. Cir. 1996)

United States v. Morales, 108 F.3d 1031 (9th Cir. 1997)

United States v. Bennett, 161 F.3d 171 (3d Cir. 1998)

6. Requiring defendant to display body or to don

clothing

It is not a violation of the Fifth Amendment to require a defendant

1. to display to the jury an arm tattoo

United States v. Alpern, 564 F.2d 755 (7th Cir. 1977)

United States v. Bay, 762 F.2d 1314 (9th Cir. 1984)

2. to shave a beard

United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978)

United States v. Valenzuela, 722 F.2d 1431 (9th Cir. 1983)

3. to don an article of clothing

United States v. King, 433 F.2d 937 (9th Cir. 1970)

United States v. Satterfield, 572 F.2d 687 (9th Cir. 1978)

United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978)

United States v. Williams, 704 F.2d 315 (6th Cir. 1983)

4. to give voice samples

United States v. Terry, 702 F.2d 299 (2d Cir. 1983)

United States v. Williams, 704 F.2d 315 (6th Cir. 1983)

5. to give handwriting samples

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)

United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984) (the court held, however, that it is a violation of the privilege to require defendant to write

words dictated to him or her, because that requires defendant in effect to

say: “This is the way I spell these words.”)
Part V. Evidence 105

6. to stand for purposes of identification

United States v. Wilson, 719 F.2d 1491 (10th Cir. 1983)

7. to remove a pair of glasses

United States v. Wilson, 719 F.2d 1491 (10th Cir. 1983)

8. to expose his or her teeth and gums to be viewed by a witness

United States v. Maceo, 873 F.2d 1 (1st Cir. 1989)

9. to utter certain phrases so that the jury can compare the defendant’s

voice with the voice on a tape of a drug transaction

United States v. Leone, 823 F.2d 246 (8th Cir. 1987)

See infra at 123–25.

7. Evidence improperly admitted or admitted for limited

purpose

An error caused by the improper introduction of evidence or the admission of evidence that is properly admitted for only a limited purpose may

oftentimes be avoided by a prompt and forceful instruction to the jury.

When considering whether a new trial should be granted, an appellate court

will consider the forcefulness and timeliness of the trial court’s curative

instruction.

United States v. Nace, 561 F.2d 763 (9th Cir. 1977)

United States v. Johnson, 618 F.2d 60 (9th Cir. 1980)

Curative instructions may not be adequate when the prejudicial evidence

bears on a factual issue vital to the case.

United States v. St. Clair, 855 F.2d 518 (8th Cir. 1988) (polygraph test)

United States v. Miller, 874 F.2d 1255 (9th Cir. 1989)

a. Prior consistent and inconsistent statements

Federal Rule of Evidence 801(d)(1)(B) permits the introduction of a

declarant’s consistent out-of-court statements to rebut a charge of recent

fabrication or improper influence or motive only when those statements

were made before the charged recent fabrication or improper influence or

motive.

Tome v. United States, 513 U.S. 150 (1995)

When a witness’s prior inconsistent statement is admitted in evidence, the

court must, on request by counsel, instruct the jury that the statement was

admitted only for the purpose of impeaching the witness’s testimony in

court and is not to be considered as evidence of the truth of the matter
106 Manual on Recurring Problems in Criminal Trials, fifth edition

referred to in the statement.

United States v. Partin, 493 F.2d 750 (5th Cir. 1974)

United States v. Jones, 592 F.2d 1038 (9th Cir. 1979)

Statements made by a criminal defendant during failed plea bargain negotiations may be used as trial evidence to impeach the defendant’s inconsistent testimony, if the defendant has knowingly and voluntarily agreed

to waive the provisions of Federal Rule of Evidence 410 and Federal Rule of

Criminal Procedure 11(e)(6) that prohibit admission of such statements

against the defendant.

United States v. Mezzanatto, 513 U.S. 196 (1995)

b. Evidence admissible for one purpose but not for another

If evidence is admissible for one purpose but is inadmissible for another,

the trial judge must upon request instruct the jury as to the limited purpose

for which the evidence may be considered.

United States v. Washington, 592 F.2d 680 (2d Cir. 1979)

United States v. Rivera, 837 F.2d 906 (10th Cir. 1988), vacated and remanded on

other grounds, 900 F.2d 1462 (10th Cir. 1990)

c. When evidence has been withdrawn from jury’s consideration

When the court withdraws evidence from the jury’s consideration, it should

instruct the jury to disregard the evidence.

United States v. Smith, 517 F.2d 710 (5th Cir. 1975)

United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988)

8. “Other crimes” evidence

Federal Rule of Evidence 404(b) provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident, provided that upon request by the accused, the prosecution . . . shall provide reasonable notice in advance of trial, or during

trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The rule does not extend to evidence of acts that are “intrinsic” to the charged

offense.

United States v. Williams, 900 F.2d 823 (5th Cir. 1990)

United States v. Chin, 83 F.3d 83 (4th Cir. 1996)
Part V. Evidence 107

The court need not make a preliminary finding that the government has

proved the “other crime” or “similar act” by a preponderance of the evidence before it submits the evidence to the jury. Instead, such evidence

should be admitted if there is sufficient evidence to sustain a finding by the

jury that the defendant committed the other crime or similar act.

Huddleston v. United States, 485 U.S. 681 (1988)

The threshold inquiry a court must make before admitting other-crimes

evidence under Rule 404(b) is whether the evidence is relevant and probative of a material issue other than character.

Huddleston v. United States, 485 U.S. 681 (1988)

In the Rule 404(b) context, other-crimes evidence is relevant only if the

jury can reasonably conclude that the act occurred and that the defendant

was the actor.

Huddleston v. United States, 485 U.S. 681 (1988)

Dowling v. United States, 493 U.S. 342 (1990)

Questions of relevance conditioned on proof of a fact are dealt with under

Federal Rule of Evidence 104(b):

In determining whether the government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor

makes a finding that the government has proved the conditional fact by a

preponderance of the evidence. The court simply examines the evidence

in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

Huddleston v. United States, 485 U.S. 681 (1988)

United States v. Sampson, 980 F.2d 883 (3d Cir. 1992)

United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994)

But see Fed. R. Evid. 413 and 414 (evidence of a defendant’s commission of

similar crimes of sexual assault and child molestation is admissible and may

be considered for its bearing on any matter to which such evidence is relevant)

9. Right of confrontation

The Sixth Amendment provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”

This provision confers on an accused the right to confront face-to-face in

the courtroom those who give testimony against him or her.

The Confrontation Clause reflects a preference for face-to-face confrontation

at trial. A primary interest secured by confrontation is the right of crossexamination.
108 Manual on Recurring Problems in Criminal Trials, fifth edition

Douglas v. Alabama, 380 U.S. 415 (1965)

Ohio v. Roberts, 448 U.S. 56 (1980)

United States v. Inadi, 475 U.S. 387 (1986)

If an out-of-court declarant testifies in court, there is no confrontation problem because the accused then has the right to confront that witness and to

cross-examine him or her with reference to the out-of-court statement.

California v. Green, 399 U.S. 149 (1970)

Nelson v. O’Neil, 402 U.S. 622 (1971)

To establish a violation of the Confrontation Clause, a defendant is not

required to show prejudice with respect to the trial as a whole; the focus is

on individual witnesses.

United States v. Sasson, 62 F.3d 874 (7th Cir. 1995)

In a proceeding involving an alleged offense against a child, a court may

find that the child is unable to testify in open court in the presence of the

defendant and may order that the live testimony of the child be taken by

two-way closed-circuit television, or that the child’s deposition be taken

and videotaped.

18 U.S.C. §§ 3509(b)(1), 3509(b)(2)

See United States v. Boyles, 57 F.3d 535 (7th Cir. 1995)

See infra at 112.

A defendant has a right under the Confrontation Clause to attend depositions.

Christian v. Rhode, 41 F.3d 461 (9th Cir. 1994)

a. Admission of prior testimony

Before prior testimony can be admitted, the prosecution must demonstrate

that the declarant is unavailable.

Barber v. Page, 390 U.S. 719 (1968)

California v. Green, 399 U.S. 149 (1970)

Mancusi v. Stubbs, 408 U.S. 204 (1972)

Ohio v. Roberts, 448 U.S. 56 (1980)

United States v. Inadi, 475 U.S. 387 (1986)

Fed. R. Evid. 804

b. Finding of unavailability of out-of-court declarant

The declarant is unavailable if his or her absence was procured by the defendant.

Reynolds v. United States, 98 U.S. 244 (1879)
Part V. Evidence 109

The declarant is unavailable if he or she is beyond the process of the court

at the time of trial.

Mancusi v. Stubbs, 408 U.S. 204 (1972)

However, when the government released illegal alien witnesses at the border and failed to make adequate provision for their return, they were not

unavailable.

United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987)

The Confrontation Clause does not require a showing of unavailability as a

condition for the admission of the out-of-court statements of a nontestifying

coconspirator when those statements otherwise satisfy requirements of Federal Rule of Evidence 801(d)(2)(E).

United States v. Inadi, 475 U.S. 387 (1986)

The Confrontation Clause does not require the court to find that the

declarant is unavailable in order to admit testimony under the spontaneous-declaration and medical-examination exceptions to the hearsay rule.

White v. Illinois, 502 U.S. 346 (1992)

An agency’s blanket policy of not allowing parole officers to travel outside

their district to appear as witnesses at revocation hearings does not constitute good cause to deny confrontation.

Williams v. Johnson, 171 F.3d 300 (5th Cir. 1999)

c. Proof of adequacy of indicia of reliability

An unavailable declarant’s out-of-court statement will be admissible only if

the statement is marked by adequate indicia of reliability.

Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988)

United States v. Candoli, 870 F.2d 496 (9th Cir. 1989)

The primary concern of the reliability inquiry must be to determine whether,

under the circumstances, the unavailability of the declarant for cross-examination deprives the jury of a satisfactory basis for evaluating the truth

of the declarant’s out-of-court statement.

Means v. Wilson, 522 F.2d 833 (8th Cir. 1975)

To be admitted into evidence, an out-of-court statement must bear sufficient indicia of reliability to provide the jurors with an adequate basis for

evaluating the truth of the statement.

United States v. Nelson, 603 F.2d 42 (8th Cir. 1979)

United States v. McCormick, 54 F.3d 214 (5th Cir. 1995)

Miles v. Burris, 54 F.3d 284 (7th Cir. 1995)
110 Manual on Recurring Problems in Criminal Trials, fifth edition

d. Admissibility of out-of-court statements within exceptions to

hearsay rule

Certain hearsay exceptions rest on such solid foundations that admission

of virtually any evidence within them comports with the substance of the

constitutional protection. Reliability can be inferred without more in a case

in which the evidence falls within a firmly rooted hearsay exception. In other

cases the evidence must be excluded, absent a showing of particularized

guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56 (1980) (dying declarations and cross-examined,

prior trial testimony are two hearsay exceptions so firmly rooted that their

admission as out-of-court statements does not violate Confrontation Clause)

White v. Illinois, 502 U.S. 346 (1992) (spontaneous declarations and statements

made for medical treatment do not violate the Confrontation Clause)

The following have been identified as factors attesting to the reliability of a

challenged out-of-court statement:

1. The statement carried on its face a warning to the jury against giving

it undue weight.

2. The declarant was in a position to know the identity and role of the

participants in the crime.

3. The possibility was remote that the statement was founded on faulty

recollection.

4. It was not likely that the declarant misrepresented the defendant’s

involvement.

5. The statement was spontaneous.

Dutton v. Evans, 400 U.S. 74 (1970)

If the out-of-court statement does not fall within one of the “firmly rooted

hearsay exceptions,” there must be a case-by-case analysis to determine

whether the right of confrontation is violated.

United States v. Medico, 557 F.2d 309 (2d Cir. 1977)

United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)

Glenn v. Dallman, 635 F.2d 1183 (6th Cir. 1980)

Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985)

United States v. Chapman, 866 F.2d 1326 (11th Cir. 1989)

United States v. Gomez, 191 F.3d 1214 (10th Cir. 1999)

Federal Rule of Evidence 801 characterizes statements by coconspirators as

exemptions from the hearsay rule.
Part V. Evidence 111

An accomplice’s confession made during custodial interrogation does not

fall within exceptions to the hearsay rule.

Lilly v. Virginia, 527 U.S. 116 (1999)

The fact that an extrajudicial declaration may be admissible under the Federal Rules of Evidence does not by itself establish compliance with the Confrontation Clause.

Ohio v. Roberts, 448 U.S. 56 (1980)

United States v. Candoli, 870 F.2d 496 (9th Cir. 1989)

The residual hearsay exception of Federal Rule of Evidence 804(b)(5) is not

a firmly rooted hearsay exception. Thus, indicia of reliability sufficient to

satisfy the Confrontation Clause must be demonstrated before evidence is

admitted under this rule.

Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985)

Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir. 1989), reh’g on other grounds,

888 F.2d 1286 (10th Cir. 1989)

Neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by the admission of a witness’s out-of-court identification statement

if the witness testifies at trial but is unable to recall the basis for his or her

prior identification because of memory loss. It is not necessary to determine that the testimony of such a witness is also marked by “adequate indicia of reliability” if the witness is subject to unrestricted cross-examination

at trial.

United States v. Owens, 484 U.S. 554 (1988)

e. Coconspirator statements not challenged by right of

confrontation

A coconspirator’s statement requires no inquiry concerning the Confrontation Clause if evidence has established that it is in fact a coconspirator’s

statement.

United States v. Inadi, 475 U.S. 387 (1986)

Bourjaily v. United States, 483 U.S. 171 (1987)

See supra at 75–84.

f. Defendant’s right of confrontation includes right to be present

at all stages of trial

Federal Rule of Criminal Procedure 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial. The rule’s list of sit-
112 Manual on Recurring Problems in Criminal Trials, fifth edition

uations in which the trial may proceed without the defendant is exclusive.

Crosby v. United States, 506 U.S. 255 (1993)

See Taylor v. United States, 414 U.S. 17 (1973)

A judge must inquire into the reason for a defendant’s absence and determine whether it constitutes a voluntary waiver of his or her right to be

present.

United States v. Davis, 61 F.3d 291 (5th Cir. 1995)

When a defendant expresses a desire not to attend trial, the court must

ensure that the defendant knows of the opportunity to attend and understands the ramifications of his or her choice not to attend so that the decision to waive the right will be intelligently made.

United States v. Nichols, 56 F.3d 403 (2d Cir. 1995)

It was error for a trial court to exclude a defendant from the courtroom

while the court questioned deputy sheriffs, bailiffs, and jurors to determine

whether an altercation in the courtroom might have prejudiced the

defendant’s right to a fair trial.

Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977)

It was error for a trial court to exclude the accused from the taking of a

deposition of a witness.

United States v. Benfield, 593 F.2d 815 (8th Cir. 1979)

The defendant has the right to be present during an in camera hearing regarding jury misconduct.

Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979)

g. Placement of screen between defendant and adverse witness

violates Confrontation Clause

Placement of a screen between the defendant and the witness testifying

against him or her violates the Confrontation Clause. This clause guarantees a defendant the right to a face-to-face encounter with all witnesses testifying before the trier of fact.

Coy v. Iowa, 487 U.S. 1012 (1988)

But see Maryland v. Craig, 497 U.S. 836 (1990) (statute allowing one-way closedcircuit testimony by a child witness doesn’t violate the Confrontation Clause

if the state makes an adequate showing of necessity); United States v. Boyles,

57 F.3d 535 (7th Cir. 1995) (allowing a child to testify via videotape was proper

where expert testimony indicated that the child would likely suffer emotional

trauma if forced to testify in court); 18 U.S.C. § 3509(b)(1) and (2) (a child

who is found unable to testify in open court in the presence of the defendant

may testify by closed-circuit television or videotaped deposition)

See supra at 107–08.
Part V. Evidence 113

h. Effect of defendant’s voluntary absence from trial

The defendant may waive his or her right of confrontation by voluntary

absence from trial.

United States v. Peterson, 524 F.2d 167 (4th Cir. 1975)

United States v. Pastor, 557 F.2d 930 (2d Cir. 1977)

United States v. Powell, 611 F.2d 41 (4th Cir. 1979)

But see United States v. Camacho, 955 F.2d 950 (4th Cir. 1992)

If the defendant is absent, the court should try to find out where the defendant is and why he or she is absent. A statement by defense counsel that

counsel does not know where the defendant is does not constitute waiver of

the defendant’s right to be present.

United States v. Rogers, 853 F.2d 249 (4th Cir. 1988)

Even when a defendant is voluntarily absent from trial, the trial court should

not proceed with the trial until it has weighed the factors favoring continuance of the trial against those favoring the presence of the defendant at the

trial.

United States v. Peterson, 524 F.2d 167 (4th Cir. 1975)

United States v. Pastor, 557 F.2d 930 (2d Cir. 1977)

United States v. Benavides, 596 F.2d 137 (5th Cir. 1979)

See Clark v. Scott, 70 F.3d 386 (5th Cir. 1995) (balancing test not constitutionally required)

A judge must inquire into the reason for a defendant’s absence and determine whether it constitutes a voluntary waiver of his or her right to be

present.

United States v. Davis, 61 F.3d 291 (5th Cir. 1995)

When a defendant expresses a desire not to attend trial, the court must

ensure that the defendant knows of his or her right to attend and understands the ramifications of not attending so that the decision to waive the

right will be intelligently made.

United States v. Nichols, 56 F.3d 403 (2d Cir. 1995)

In a single-defendant trial, proceeding without the defendant is ordinarily

not proper.

United States v. Rogers, 853 F.2d 249 (4th Cir. 1988)

i. Defendant has right to be present during jury selection

The defendant has the right to be present during selection of the jury and

to participate in it. This right includes the right to be present during any in

camera questioning of prospective jurors.

United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980)

United States v. Pappas, 639 F.2d 1 (1st Cir. 1980)
114 Manual on Recurring Problems in Criminal Trials, fifth edition

It is reversible error for the trial court to impanel the jury in the defendant’s

absence without a personal on-the-record waiver of his or her right to be

present. A representation by defense counsel is not sufficient.

United States v. Gordon, 829 F.2d 119 (D.C. Cir. 1987)

j. Effect of illness of defendant

If a defendant becomes ill and cannot be present when witnesses are questioned, the court must adjourn the trial until the defendant can be present

or, if it is a multiple-defendant trial, grant a severance to the ill defendant.

United States v. Toliver, 541 F.2d 958 (2d Cir. 1976)

10. Confessions by defendant

Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny govern the admissibility of statements made during custodial interrogation in both state and

federal courts. Miranda is a constitutional decision that may not be overruled by an Act of Congress, which was the intent of section 3501, Title 18

of the U.S. Code.

Dickerson v. United States, 530 U.S. 428 (2000)

If the issue of voluntariness of a confession is raised during trial, the court

must hold a hearing out of the presence of the jury to determine whether

the confession is admissible.

Jackson v. Denno, 378 U.S. 368 (1964)

Despite the failure of defense counsel to offer an objection, if during the

course of a trial the trial judge finds that the voluntariness of a confession is

clearly in doubt, he or she must conduct an inquiry on that issue.

United States v. Powe, 591 F.2d 833 (D.C. Cir. 1978)

United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980)

a. Voluntariness standard to be applied by court

The standard for determining the voluntariness of a confession is whether,

taking into consideration all the circumstances, the statement is the product of the accused’s free and rational choice. The confession must not have

been extracted by any sort of threats or violence, nor obtained by any direct

or implied promises, however slight, or the exertion of any improper influence.

United States v. Martinez-Perez, 625 F.2d 541 (5th Cir. 1980)

Leon v. Wainwright, 734 F.2d 770 (11th Cir. 1984)

United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993)
Part V. Evidence 115

To find a defendant’s confession voluntary, the court must conclude that

the defendant made an independent and informed choice of his or her own

free will, that the defendant possessed the capability to do so, and that the

defendant’s will was not overborne by surrounding pressures and circumstances.

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980)

The voluntariness of a confession cannot be equated with the absolute absence of intimidation. Under such a test, virtually no statement would be

voluntary because few people give incriminating statements in the absence

of official action of some kind.

United States v. Wertz, 625 F.2d 1128 (4th Cir. 1980)

Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986)

Statements or confessions made during a time of mental incompetency or

insanity are involuntary and inadmissible.

Sullivan v. Alabama, 666 F.2d 478 (11th Cir. 1982)

The government is required to prove the voluntariness of a confession only

by a preponderance of the evidence.

United States v. Falcon, 766 F.2d 1469 (10th Cir. 1985)

To determine the voluntariness of a confession, the court must consider the

effect that the totality of the circumstances had on the will of the defendant.

The question in each case is whether the defendant’s will was overborne

when he or she confessed.

Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986)

United States v. Rith, 164 F.3d 1323 (10th Cir. 1999)

Subsequent administration of Miranda warnings to a suspect who has previously given a voluntary but unwarned statement is sufficient to allow admission of the statement.

Oregon v. Elstad, 470 U.S. 298 (1985)

Cf. Moran v. Burbine, 475 U.S. 412 (1986) (the police’s failure to inform the

suspect of attorney’s phone call did not fatally taint his waivers of his Fifth

Amendment rights)

A defendant who has been charged with an offense and is represented by

counsel may be questioned by police regarding a different, related offense

without counsel present. A confession made in such circumstances, with

adequate Miranda warnings, is admissible.

Texas v. Cobb, 121 S. Ct. 1335 (2001)

Independent of the question of voluntariness, a defendant’s case may turn

on his or her ability to convince the jury that the manner in which his or

her confession was obtained casts doubt on its credibility. Thus, at trial a
116 Manual on Recurring Problems in Criminal Trials, fifth edition

defendant must be allowed to introduce evidence of the circumstances under which the confession was made, even if the defendant marshaled the

same evidence earlier in support of an unsuccessful motion to suppress.

Crane v. Kentucky, 476 U.S. 683 (1986)

But see Montana v. Egelhoff, 518 U.S. 37 (1996) (Crane does not set forth an

absolute entitlement to introduce crucial, relevant evidence)

b. Burden on prosecution to prove voluntariness of confession

The prosecution bears the burden of convincing the court by at least a preponderance of the evidence that the confession was voluntary.

United States v. Dodier, 630 F.2d 232 (4th Cir. 1980)

Williams v. Maggio, 727 F.2d 1387 (5th Cir. 1984)

United States v. Harrison, 34 F.3d 886 (9th Cir. 1994)

c. Court is not to consider truthfulness of confession

The court is to disregard the question whether the defendant in fact spoke

the truth in making a confession. During the hearing, the trial judge is to

ignore implications of reliability and to shut his or her mind to any internal

evidence of authenticity that a confession might bear. The only question

before the court is whether the confession was given knowingly and voluntarily.

Doby v. South Carolina Dept. of Corrections, 741 F.2d 76 (4th Cir. 1984) (habeas

corpus proceeding)

Doby v. South Carolina Dept. of Corrections, 802 F.2d 718 (4th Cir. 1986)

d. Court to make affirmative finding of voluntariness

When an evidentiary hearing has been held on a motion to suppress a confession, the trial court should make a finding on the record as to the

voluntariness of the confession.

e. Court to instruct jury

If the issue of the voluntariness of a confession has been placed before the

jury, the court must provide a specific instruction on voluntariness to the

jury. The court must instruct the jury to give such weight to the confession

as the jury feels that it deserves under all the circumstances.

United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984)

The trial court is required to instruct the jury concerning the weight to be

given a defendant’s confession only if sufficient relevant evidence was presented to raise a genuine factual issue concerning the voluntariness of the

confession.
Part V. Evidence 117

United States v. Fera, 616 F.2d 590 (1st Cir. 1980)

United States v. Bondurant, 689 F.2d 1246 (5th Cir. 1982)

United States v. Blue Horse, 856 F.2d 1037 (8th Cir. 1988)

11. Chain of custody

The defendant may challenge an exhibit offered by the prosecution on the

ground that the prosecution has failed to prove a chain of custody of that

exhibit. The circuits have held that a prosecutor need not prove an absolute

chain of custody but only an adequate chain of custody.

The following are requirements set forth by a number of circuits relative to

the meeting of a chain-of-custody objection.

The court must ascertain that the exhibit has not been altered in any material respect since the time of the crime.

United States v. Luna, 585 F.2d 1 (1st Cir. 1978)

If the defendant has objected to the admission of an exhibit on the ground

that the prosecution has failed to establish a valid chain of custody, the court

must consider the following factors: the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood that

anyone has tampered with it since the time of the crime. After considering

such factors, if the court is satisfied that the article has not been altered in

any important respect, it may deny the chain-of-custody objection and admit the exhibit into evidence.

United States v. Garcia, 718 F.2d 1528 (11th Cir. 1983)

United States v. Gay, 774 F.2d 368 (10th Cir. 1985)

Hoover v. Thompson, 787 F.2d 449 (8th Cir. 1986)

Whether the government has proven an adequate chain of custody goes to

the weight of the evidence rather than to its admissibility.

United States v. Lampson, 627 F.2d 62 (7th Cir. 1980)

United States v. Clark, 664 F.2d 1174 (11th Cir. 1981)

A minor break in the chain of custody affects the weight but not the admissibility of the evidence.

United States v. Clark, 664 F.2d 1174 (11th Cir. 1981)

Courts need to exercise greater care when the issue is the very identity of

the evidence rather than possible changes in its condition.

United States v. Lampson, 627 F.2d 62 (7th Cir. 1980)
118 Manual on Recurring Problems in Criminal Trials, fifth edition

12. Conducting experiments before or involving jury

The decision whether to allow jurors to participate in experiments involving trial evidence, on request of counsel, is in the broad discretion of the

trial court.

United States v. Peltier, 585 F.2d 314 (8th Cir. 1978) (upholding refusal to allow

jurors to look through telescopic lens)

It is not error to permit a handler to demonstrate the ability of a dog to sniff

out narcotics.

United States v. Rackley, 742 F.2d 1266 (11th Cir. 1984)

B. Witnesses

1. Fifth Amendment privilege against self-incrimination

A witness has the privilege under the Fifth Amendment to decline to respond to a question if the answer would tend to incriminate him or her,

that is, would tend to indicate that the witness was guilty of a crime or

would furnish a link in the chain of evidence needed to prosecute the witness for a crime.

The privilege protects an individual’s right to refuse to give information

that is compelled, testimonial, and incriminating.

United States v. Doe, 465 U.S. 605 (1984)

United States v. Hubbell, 530 U.S. 27 (2000)

Ciccone v. Secretary of Dept. of Health & Human Servs., 861 F.2d 14 (2d Cir.

1988)

In order to be privileged, the content of a compelled communication must

have testimonial significance. Such significance depends on the facts and

circumstances of a particular case.

Doe v. United States, 487 U.S. 201 (1988)

Pennsylvania v. Muniz, 496 U.S. 582 (1990)

The privilege may be asserted in any type of proceeding—administrative or

judicial, investigatory or adjudicative.

National Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595 (3d Cir.

1980)

In re Corrugated Container Antitrust Litig., 620 F.2d 1086 (5th Cir. 1980)

In re Corrugated Container Antitrust Litig., 661 F.2d 1145 (7th Cir. 1981), aff ’d,

Pillsbury Co. v. Conboy, 459 U.S. 248 (1983)

Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067 (6th Cir. 1990)
Part V. Evidence 119

The privilege protects a federal witness from incrimination under state law

as well as federal law.

F.D.I.C. v. Sovereign State Capital, Inc., 557 F.2d 683 (9th Cir. 1977)

United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978)

In re Grand Jury Proceedings (Buckley), 860 F.2d 11 (2d Cir. 1988)

A guilty plea does not constitute a waiver of the privilege at sentencing. A

sentencing court may not draw an adverse inference from a defendant’s

silence in determining facts relating to the circumstances and details of the

crime.

Mitchell v. United States, 526 U.S. 314 (1999)

Neither defense counsel nor government counsel may claim the privilege

for a witness. The privilege is a personal one and must be invoked by the

witness.

United States v. Mayes, 512 F.2d 637 (6th Cir. 1975)

United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982)

a. Grounds for invoking privilege

The privilege is confined to instances in which the witness has reasonable

cause to apprehend a danger of self-incrimination from compelled answers

to questions.

United States v. Kuh, 541 F.2d 672 (7th Cir. 1976)

In re Grand Jury Proceedings (Buckley), 860 F.2d 11 (2d Cir. 1988)

United States v. Hatchett, 862 F.2d 1249 (6th Cir. 1988)

But see United States v. Trupin, 117 F.3d 678 (2d Cir. 1997)

To assert the privilege, a claimant must be confronted by substantial and

real, not merely trifling or imaginary, hazards of incrimination.

United States v. Apfelbaum, 445 U.S. 115 (1980)

United States v. Rubio-Topete, 999 F.2d 1334 (9th Cir. 1993)

Fear for the safety of oneself or others is not a ground for refusing to testify.

Piemonte v. United States, 367 U.S. 556 (1961)

United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978)

United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)

In re Grand Jury Proceedings (Burns), 652 F.2d 413 (5th Cir. 1981)

In re Grand Jury Proceedings (Doe), 943 F.2d 132 (1st Cir. 1991)

However, fear of reprisal for testifying may be a defense to confinement for

civil contempt if it is subjectively and objectively genuine and reasonable.

In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir. 1986)

In re Grand Jury Proceedings (Doe), 862 F.2d 430 (2d Cir. 1988)

In re Grand Jury Proceedings of Dec. 1989, 903 F.2d 1167 (7th Cir. 1990)

In re Grand Jury Proceeding (Doe), 13 F.3d 459 (1st Cir. 1994)
120 Manual on Recurring Problems in Criminal Trials, fifth edition

Fear of prosecution by a foreign state is not a ground for invoking the privilege unless there is a real and substantial possibility of such prosecution.

Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972)

In re Grand Jury Proceedings (Postal), 559 F.2d 234 (5th Cir. 1977)

In re Campbell, 628 F.2d 1260 (9th Cir. 1980)

In re Baird, 668 F.2d 432 (8th Cir. 1982)

In re Grand Jury Proceeding 82-2 (Nigro), 705 F.2d 1224 (10th Cir. 1982) (no real

and substantial danger of foreign prosecution exists because of court’s power

and duty to preserve grand jury secrecy)

In re Gilboe, 699 F.2d 71 (2d Cir. 1983)

United States v. Joudis, 800 F.2d 159 (7th Cir. 1986)

In re Sealed Case, 825 F.2d 494 (D.C. Cir. 1987)

United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997) (privilege does not

extend to fear of foreign conviction)

In re Impounded, 178 F.3d 150 (3d Cir. 1999)

b. Corporations and other collective entities cannot assert privilege

A corporation or other collective entity has no privilege against self-incrimination. Neither a corporation nor its officers may prevent production

of relevant corporate records by asserting a corporate privilege against selfincrimination.

Bellis v. United States, 417 U.S. 85 (1974)

Fisher v. United States, 425 U.S. 391 (1976)

Braswell v. United States, 487 U.S. 99 (1988)

United States v. Sourapas, 515 F.2d 295 (9th Cir. 1975)

United States v. Alderson, 646 F.2d 421 (9th Cir. 1981)

United States v. Harrison, 653 F.2d 359 (8th Cir. 1981)

In re Grand Jury Subpoena Duces Tecum, 795 F.2d 904 (11th Cir. 1986)

A corporate custodian may not resist a subpoena for corporate records on

the ground that the act of producing them has independent testimonial

significance that will incriminate him or her individually. Because the custodian acts as a corporate representative, his or her act of production is

deemed an act of the corporation, which has no Fifth Amendment privilege.

Braswell v. United States, 487 U.S. 99 (1988)

However, certain evidentiary consequences flow from the fact that the corporate custodian’s act of production is deemed one in a representative, rather

than individual, capacity. Since the custodian’s act of production is deemed

an act of the corporation, the government may not make evidentiary use of

that act in a proceeding brought against the custodian in an individual capacity. For example, in a criminal prosecution against the custodian in an

individual capacity, the government may not introduce evidence before the
Part V. Evidence 121

jury that the subpoena was served on the custodian–defendant or that the

corporate records were delivered by the custodian–defendant. However, the

government may make evidentiary use of the corporation’s act of production in that proceeding. Thus, the jury would be entitled to infer from other

evidence presented in the case that if the individual custodian–defendant

held a prominent position in the corporation that produced the records, he

or she also had possession of the documents or knowledge of their contents.

Braswell v. United States, 487 U.S. 99 (1988)

c. Sole proprietor cannot claim privilege for records kept as

required by law

If the records kept by a sole proprietor are required by law or regulation to

be kept and fall within the required-records exception to the Fifth Amendment privilege, the sole proprietor may not rely on the Fifth Amendment

when the records are required to be produced.

Shapiro v. United States, 335 U.S. 1 (1948)

In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979)

In re Kenny, 715 F.2d 51 (2d Cir. 1983)

In re Grand Jury Subpoena Duces Tecum Served upon Underhill, 781 F.2d 64 (6th

Cir. 1986)

In re Grand Jury Subpoena (Spano), 21 F.3d 226 (8th Cir. 1994)

But see Smith v. Richert, 35 F.3d 300 (7th Cir. 1994)

For records to meet the required-records exception to the Fifth Amendment, the purpose of the government’s record-keeping requirement must

be essentially regulatory rather than criminal, the records must contain the

type of information that a regulated party would ordinarily keep, and the

records must have assumed public aspects that render them at least analogous to public documents.

Grosso v. United States, 390 U.S. 62 (1968)

In re Grand Jury Subpoena Duces Tecum Served upon Underhill, 781 F.2d 64 (6th

Cir. 1986)

In re Grand Jury Proceedings, 801 F.2d 1164 (9th Cir. 1986)

United States v. Lehman, 887 F.2d 1328 (7th Cir. 1989)

In re Grand Jury Subpoena (Spano), 21 F.3d 226 (8th Cir. 1994)

Smith v. Richert, 35 F.3d 300 (7th Cir. 1994)

The required-records exception does not apply if the purpose of the recordkeeping requirement is the detection of criminal activity.

Grosso v. United States, 390 U.S. 62 (1968)

Bionic Auto Parts & Sales v. Fahner, 721 F.2d 1072 (7th Cir. 1983)

Although the contents of the voluntarily kept business records of a sole
122 Manual on Recurring Problems in Criminal Trials, fifth edition

proprietorship are not privileged under the Fifth Amendment, the sole

proprietor’s act of producing or authenticating the records may be privileged. If a claim of privilege is raised by a sole proprietorship and the court

determines that the act of producing the subpoenaed documents involves

testimonial self-incrimination, the court must deny enforcement of the subpoena.

United States v. Doe, 465 U.S. 605 (1984)

United States v. Hubbell, 530 U.S. 27 (2000)

Rogers Transp., Inc. v. Stern, 763 F.2d 165 (3d Cir. 1985)

But see In re Grand Jury Subpoena (Spano), 21 F.3d 226 (8th Cir. 1994)

d. Waiver of privilege by witness

If a witness fails to invoke the privilege in response to a question, the witness is deemed to have waived the privilege as to all questions on the same

subject matter.

United States v. O’Henry’s Film Works, Inc., 598 F.2d 313 (2d Cir. 1979)

Once incriminating facts are voluntarily revealed, the privilege may not be

invoked to avoid disclosure of details.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)

United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982)

United States v. Green, 757 F.2d 116 (7th Cir. 1985)

Several circuits have held that a witness may waive his or her Fifth Amendment privilege before a grand jury, yet claim the privilege at trial. These

circuits limit the waiver to the proceeding in which the waiver is made.

United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979)

United States v. James, 609 F.2d 36 (2d Cir. 1979)

United States v. Fortin, 685 F.2d 1297 (11th Cir. 1982) (waiver to plead guilty did

not constitute waiver of privilege in other criminal trial)

In re Morganroth, 718 F.2d 161 (6th Cir. 1983)

However, the District of Columbia Circuit has held that

a witness who voluntarily testifies before a grand jury without invoking

the privilege against self-incrimination, of which he has been advised,

waives the privilege and may not thereafter claim it when he is called to

testify as a witness at the trial on the indictment returned by the grand

jury, where the witness is not the defendant, or under indictment.

Nevertheless, the witness “may object to any question that would require

disclosure of new matter of substance.”

Ellis v. United States, 416 F.2d 791 (D.C. Cir. 1969)

United States v. Miller, 904 F.2d 65 (D.C. Cir. 1990)
Part V. Evidence 123

e. Waiver of privilege by testifying defendant

A defendant who takes the stand waives any Fifth Amendment privilege

regarding cross-examination relevant to the issues raised by his or her direct testimony.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)

United States v. Green, 757 F.2d 116 (7th Cir. 1985)

The breadth of the waiver is determined by the scope of relevant crossexamination. The extent of the cross-examination is within the discretion

of the court. The defendant may not claim the privilege against cross-examination on matters reasonably related to the subject matter of his or her

direct examination. Like any other witness, the defendant may have his or

her credibility impeached and his or her testimony assailed.

Brown v. United States, 356 U.S. 148 (1958)

United States v. Hernandez, 646 F.2d 970 (5th Cir. 1981)

United States v. Green, 648 F.2d 587 (9th Cir. 1981)

If a defendant testifies on his or her own behalf but refuses to answer relevant questions on cross-examination, the trial court may properly advise

the jury that it may consider the defendant’s refusal in assessing his or her

credibility or, alternatively, the court may strike the defendant’s testimony

in whole or in part.

United States v. Panza, 612 F.2d 432 (9th Cir. 1979) (court’s discretion must be

guided by reason and fairness; before striking testimony, court should warn

defendant that defendant’s testimony will be stricken if he or she persistently

refuses to answer proper questions on cross-examination)

United States v. Silva, 611 F.2d 78 (5th Cir. 1980)

If the defendant has testified, the government may comment on the defendant’s refusal to answer proper questions during closing argument.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)

United States v. Panza, 612 F.2d 432 (9th Cir. 1979)

United States v. Silva, 611 F.2d 78 (5th Cir. 1980)

f. Requiring defendant to give certain evidence does not violate

privilege

A defendant’s right against self-incrimination is not violated when he or

she is required to give handwriting or voice samples, to don certain clothing, to stand in court, or to provide hair samples.

Gilbert v. California, 388 U.S. 263 (1967)

United States v. Dionisio, 410 U.S. 1 (1973)

United States v. Woods, 544 F.2d 242 (6th Cir. 1976), disapproved on other grounds

by Holloway v. Arkansas, 435 U.S. 475 (1978)

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)
124 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Bright, 630 F.2d 804 (5th Cir. 1980)

In re Rosahn, 671 F.2d 690 (2d Cir. 1982)

United States v. Hollins, 811 F.2d 384 (7th Cir. 1987)

At the time of trial, the defendant may be compelled to don a mask or wig

or other apparel, to remove certain clothing, or to display a scar.

United States v. Turner, 472 F.2d 958 (4th Cir. 1973)

United States v. Murray, 523 F.2d 489 (8th Cir. 1975)

United States v. Walitwarangkul, 808 F.2d 1352 (9th Cir. 1987)

United States v. Robertson, 19 F.3d 1318 (10th Cir. 1994)

Requiring a suspect to reveal the physical manner in which he or she articulates words (e.g., slurring speech) does not, without more, violate the privilege.

Pennsylvania v. Muniz, 496 U.S. 582 (1990)

The defendant may also be required to give voice exemplars by speaking the

exact words spoken at the crime.

United States v. Wade, 388 U.S. 218 (1967)

United States v. Delaplane, 778 F.2d 570 (10th Cir. 1985)

United States v. Domina, 784 F.2d 1361 (9th Cir. 1986)

United States v. Leone, 823 F.2d 246 (8th Cir. 1987)

Burnett v. Collins, 982 F.2d 922 (5th Cir. 1993)

United States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995)

The defendant may be ordered to shave prior to trial or to return his or her

hair to its dyed state at the time of the crime.

United States v. Valenzuela, 722 F.2d 1431 (9th Cir. 1983)

United States v. Brown, 920 F.2d 1212 (5th Cir. 1991)

The circuits are split as to whether a defendant may be compelled to write

words dictated to him or her. The Ninth Circuit has held that the defendant

may be compelled to do so.

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)

The First Circuit has held that the defendant may not be compelled to do so

because the defendant is in effect being compelled to testify: “This is the

way I spell these words.”

United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984)

The compelled execution of a consent form directing disclosure of foreign

bank records does not violate the Fifth Amendment. The privilege protects

only against incrimination by compelled, testimonial communications. The

act of executing such a consent form does not involve testimonial compul-
Part V. Evidence 125

sion because it does not by itself relate a factual assertion or disclose information to the government.

United States v. Doe, 465 U.S. 605 (1984)

Doe v. United States, 487 U.S. 201 (1988)

See supra at 104–05.

g. Prosecution witness may invoke privilege on

cross-examination

A prosecution witness may invoke the privilege on cross-examination even

though the question asked of the witness is a proper one.

United States v. Dooley, 587 F.2d 201 (5th Cir. 1979)

When a non-party government witness invokes the Fifth Amendment on

cross-examination, the court should permit the assertion of the privilege in

the presence of the jury in order to allow the jury to draw adverse inferences

from his or her silence.

United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)

United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987)

But see United States v. Gary, 74 F.3d 304 (1st Cir. 1996)

If a prosecution witness’s claim of privilege on cross-examination is sustained, the court may strike the witness’s testimony in whole or in part.

Fountain v. United States, 384 F.2d 624 (5th Cir. 1967)

United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)

United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)

Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988)

If a prosecution witness claims the privilege when questioned on collateral

or cumulative matters by defense counsel, his or her testimony on direct

examination need not be stricken.

United States v. Di Giovanni, 544 F.2d 642 (2d Cir. 1976)

United States v. La Riche, 549 F.2d 1088 (6th Cir. 1977)

United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)

If a prosecution witness gives damaging testimony on direct examination

but severely limits cross-examination by claiming the privilege, the defendant

may be entitled to a mistrial.

United States v. Demchak, 545 F.2d 1029 (5th Cir. 1977)

h. Court should be alert to any indication that witness wishes to

invoke privilege

The privilege may be exercised in a variety of ways: the witness may refuse

to answer the question, ask the court or the attorney if he or she has to
126 Manual on Recurring Problems in Criminal Trials, fifth edition

answer, mention the Fifth Amendment, or simply remain silent. Whenever

the court concludes that the witness may be attempting to invoke the privilege, the court should ask the witness whether he or she desires to claim the

privilege or wants to consult an attorney. The court may adjourn the trial in

order to give the witness time to consult an attorney.

United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971)

United States v. Colyer, 571 F.2d 941 (5th Cir. 1978)

Although there is no duty to advise a witness of his or her right not to

incriminate himself or herself, it is entirely proper for the court to do so.

United States v. Morrison, 535 F.2d 223 (3d Cir. 1976)

United States v. Silverstein, 732 F.2d 1338 (7th Cir. 1984)

The court should not, however, assume that the witness will claim the privilege. The witness must claim it.

United States v. Colyer, 571 F.2d 941 (5th Cir. 1978)

i. Trial court must determine whether privilege has been properly

invoked

The criterion to be applied by the trial court in determining whether the

Fifth Amendment has been properly invoked is the possibility of prosecution of the witness rather than the likelihood of prosecution. In other

words, the court is not to try to determine whether it is likely or not likely

that the witness will be prosecuted but rather whether it is possible that the

witness will be prosecuted.

United States v. Miranti, 253 F.2d 135 (2d Cir. 1958)

Isaacs v. United States, 256 F.2d 654 (8th Cir. 1958)

United States v. Seavers, 472 F.2d 607 (6th Cir. 1973)

United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973)

In re Master Key Litigation, 507 F.2d 292 (9th Cir. 1974)

In re Corrugated Container Antitrust Litig., 661 F.2d 1145 (7th Cir. 1981), aff ’d

sub nom. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983)

The trial judge must make a determination based not only on the witness’s

assertion but also on all the other circumstances of the case whether the

witness has reasonable cause to believe an answer to a question would support a conviction of the witness or would furnish a link in the chain of

evidence needed to prove a crime by the witness.

Klein v. Smith, 559 F.2d 189 (2d Cir. 1977)

The privilege is available to a witness who claims innocence if, under the

circumstances of the case, the witness has reasonable cause to fear that answers to possible questions might tend to incriminate him or her.

Ohio v. Reiner, 121 S. Ct. 1252 (2001)
Part V. Evidence 127

Out of the presence of the jury, the trial judge should examine the witness

on the record regarding his or her claim of privilege. The witness is permitted to state in very general, circumstantial terms why he or she feels it

may be incriminating to answer a given question. The judge may then examine the witness as long as is necessary to determine whether there are

reasonable grounds to believe that being compelled to answer the question

will subject the witness to a danger of incrimination.

United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976)

Some circuits have approved the further exploration of the witness’s claim

by the judge in an in camera hearing at which only the witness, his or her

counsel, and a reporter are present.

In re Brogna, 589 F.2d 24 (1st Cir. 1978)

United States v. Fricke, 684 F.2d 1126 (5th Cir. 1982)

Once a prima facie claim of privilege is raised, it is the burden of the government to make it “perfectly clear” that the answers sought “cannot possibly” tend to incriminate, for, if the witness were required to prove the hazard, he or she would be compelled to surrender the very protection that the

privilege is designed to guarantee.

United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978)

In re Grand Jury Empanelled Feb. 14, 1978 (Markowitz), 603 F.2d 469 (3d Cir.

1979)

The judge must be sensitive to the fact that the witness frequently cannot

prove that his or her claim is legitimate without surrendering it.

Ryan v. Commissioner, 568 F.2d 531 (7th Cir. 1977)

The guarantee against testimonial compulsion must be liberally construed.

The judge, rather than the witness, is to decide whether there is reasonable

cause to apprehend danger from an answer, but the judge is to require the

witness to answer only if it clearly appears to the judge that the witness is

mistaken in his or her apprehension.

Hoffman v. United States, 341 U.S. 479 (1951)

In re Grand Jury Proceedings, 562 F.2d 334 (5th Cir. 1977)

Sustaining the privilege requires only that it be evident from the implication of the question, in the setting in which it is asked, that a responsive

answer to the question or explanation of why it cannot be answered might

be dangerous because an injurious disclosure could result.

Hoffman v. United States, 341 U.S. 479 (1951)

United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976)

F.D.I.C. v. Sovereign State Capital, Inc., 557 F.2d 683 (9th Cir. 1977)

United States v. Edgerton, 734 F.2d 913 (2d Cir. 1984)
128 Manual on Recurring Problems in Criminal Trials, fifth edition

j. Blanket assertions of privilege are usually not allowed

A witness may not assert a blanket claim of privilege. The claim must be

asserted question by question.

National Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595 (3d Cir.

1980)

United States v. Allshouse, 622 F.2d 53 (3d Cir. 1980)

United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)

United States v. Rodriguez, 706 F.2d 31 (2d Cir. 1983)

United States v. Hatchett, 862 F.2d 1249 (6th Cir. 1988)

United States v. Bodwell, 66 F.3d 1000 (9th Cir. 1995)

The court should conduct a hearing out of the jury’s presence to determine

which questions the witness must answer and which need not be answered.

United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)

United States v. Zappola, 646 F.2d 48 (2d Cir. 1981)

The court may sustain a blanket assertion of the privilege if it concludes,

after inquiry, that the witness could legitimately refuse to answer essentially

all relevant questions.

United States v. Tsui, 646 F.2d 365 (9th Cir. 1981) (narrow exception)

But see United States v. Moore, 682 F.2d 853 (9th Cir. 1982)

k. Witness not to be called if it is known he or she will claim

privilege

Neither the prosecution nor the defense should be permitted to call a witness who they know will claim the privilege.

United States v. Watson, 591 F.2d 1058 (5th Cir. 1979)

United States v. Crawford, 707 F.2d 447 (10th Cir. 1983)

United States v. Plescia, 48 F.3d 1452 (7th Cir. 1995)

A defendant may not call as a witness a codefendant who has indicated his

or her intention to claim the privilege.

United States v. Roberts, 503 F.2d 598 (9th Cir. 1974)

United States v. Tuley, 546 F.2d 1264 (5th Cir. 1977)

l. Effect of grant of immunity

Immunized testimony in a grand jury proceeding from a witness who claims

the privilege at trial may not be introduced in evidence under Federal Rule

of Evidence 804(b)(1) without a showing of “similar motive.”

United States v. Salerno, 505 U.S. 317 (1992)

A witness who has been granted immunity may not claim the privilege,

since the immunity affords him or her the same protection as the Fifth

Amendment.
Part V. Evidence 129

In re Gilboe, 699 F.2d 71 (2d Cir. 1983)

In re Grand Jury Proceedings, 860 F.2d 11 (2d Cir. 1988)

m. Defendant may or may not be able to claim privilege after

pleading guilty

A defendant who pleads guilty to one count of a multicount indictment

may claim the privilege because he or she is still subject to prosecution on

the other counts.

MacKay v. United States, 503 F.2d 591 (10th Cir. 1974)

United States v. Valencia, 656 F.2d 412 (9th Cir. 1981)

If there is only one crime for which the defendant is potentially liable, and

the defendant pleads guilty to that crime, the plea is a waiver of the privilege, and he or she may be compelled to testify.

United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978)

United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980)

But see United States v. Velasquez, 141 F.3d 1280 (8th Cir. 1998)

If the defendant pleads guilty to a federal charge but is still subject to prosecution by a state, he or she may claim the privilege.

United States v. Metz, 608 F.2d 147 (5th Cir. 1979)

United States v. Velasquez, 141 F.3d 1280 (8th Cir. 1998)

A voluntary guilty plea is a waiver of the privilege only with respect to the

crime that was admitted to by the plea.

United States v. Moore, 682 F.2d 853 (9th Cir. 1982)

United States v. Fortin, 685 F.2d 1297 (11th Cir. 1982)

United States v. Rodriguez, 706 F.2d 31 (2d Cir. 1983)

A guilty plea does not constitute a waiver of the privilege at sentencing. A

sentencing court may not draw an adverse inference from a defendant’s

silence in determining facts relating to the circumstances and details of the

crime.

Mitchell v. United States, 526 U.S. 314 (1999)

n. Comment in argument after assertion of privilege

The jury may draw no inference from the exercise of the privilege irrespective

of whether the inference is favorable to the prosecution or to the defense.

United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981)

If the witness makes a valid claim of privilege, counsel may not make any

argument to the jury based on any inference that might be drawn from that

claim.

United States v. Castillo, 615 F.2d 878 (9th Cir. 1980)

Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984)
130 Manual on Recurring Problems in Criminal Trials, fifth edition

If the defendant takes the witness stand, the prosecutor may comment on

the defendant’s failure to deny or explain incriminating facts already in evidence. The prosecutor may do so whether or not the defendant claims the

privilege. The defendant may not selectively testify as to the merits yet avoid

comment on his or her failure to explain other incriminating evidence.

2. Introducing information adverse to government

witness during direct examination

The government may bring out on its direct examination of a government

witness the fact that it has entered into an agreement with that witness to

permit his or her pleading to a reduced charge.

United States v. Hedman, 630 F.2d 1184 (7th Cir. 1980)

United States v. Henderson, 717 F.2d 135 (4th Cir. 1983)

United States v. Roth, 736 F.2d 1222 (8th Cir. 1984)

United States v. Walker, 871 F.2d 1298 (6th Cir. 1989)

The government may bring out on direct examination of a government

witness the circumstances surrounding that witness’s motivation for cooperating with the government or any other matter damaging to that

witness’s credibility. The admission of such evidence during direct examination is permitted to avoid the inference by the jury that the government

is attempting to keep from them the witness’s possible bias.

United States v. Edwards, 631 F.2d 1049 (2d Cir. 1980)

United States v. McNeill, 728 F.2d 5 (1st Cir. 1984)

There is a split among the circuits regarding the extent to which the government is free to elicit the details of its plea arrangements with its witnesses on direct examination. A majority of circuits allow the government

to elicit on direct examination a witness’s plea bargain or immunity-agreement promise to testify truthfully.

United States v. Henderson, 717 F.2d 135 (4th Cir. 1983)

United States v. Martin, 815 F.2d 818 (1st Cir. 1987)

United States v. Mealy, 851 F.2d 890 (7th Cir. 1988)

United States v. Walker, 871 F.2d 1298 (6th Cir. 1989)

United States v. Edelman, 873 F.2d 791 (5th Cir. 1989)

United States v. Drews, 877 F.2d 10 (8th Cir. 1989)

United States v. Lord, 907 F.2d 1028 (10th Cir. 1990)

United States v. Spriggs, 996 F.2d 320 (D.C. Cir. 1993)

See also United States v. Oxman, 740 F.2d 1298 (3d Cir. 1984), vacated on other

grounds sub nom. United States v. Pflaumer, 473 U.S. 922 (1985) (entire plea

agreement admissible if government could anticipate later effort to impeach

witness)

The Second, Ninth, and Eleventh Circuits do not permit the government to
Part V. Evidence 131

elicit the specific terms of a cooperation agreement relating to the witness’s

promise to testify truthfully before the witness’s credibility is attacked on

cross-examination.

United States v. Borello, 766 F.2d 46 (2d Cir. 1985)

But see United States v. Cosentino, 844 F.2d 30 (2d Cir. 1988) (“Were we writing

on a blank slate, we might have followed the other circuits . . . .”)

United States v. Hilton, 772 F.2d 783 (11th Cir. 1985)

But see United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986) (exception allows

evidence on direct examination if witness’s credibility has been attacked in

defense’s opening statement)

United States v. Wallace, 848 F.2d 1464 (9th Cir. 1988)

Although the government may bring out on direct examination that a government witness is within a witness protection program, this must be

handled so as not to imply that the defendant was the reason the witness

entered the program.

United States v. Di Francesco, 604 F.2d 769 (2d Cir. 1979), rev’d on other grounds, 449 U.S. 117 (1980)

It is probably better to have the witness protection program brought out

only by the defendant.

United States v. Marrionneaux, 552 F.2d 621 (5th Cir. 1977)

3. Cross-examination of government witness

The Sixth Amendment right of an accused to confront the witnesses against

him or her includes the opportunity for adequate and effective cross-examination.

Davis v. Alaska, 415 U.S. 308 (1974)

Delaware v. Fensterer, 474 U.S. 15 (1985)

United States v. Owens, 484 U.S. 554 (1988)

Olden v. Kentucky, 488 U.S. 227 (1988)

The right of a defendant to engage in a searching and wide-ranging crossexamination of any government witness is an essential requirement for a

fair trial.

United States v. Jones, 557 F.2d 1237 (8th Cir. 1977)

Cross-examination may embrace any matter germane to direct examination, qualifying or destroying it, or attempting to elucidate, modify, explain,

contradict, or rebut testimony given by the witness on direct examination.

Villanueva v. Leininger, 707 F.2d 1007 (8th Cir. 1983)

Dorsey v. Parke, 872 F.2d 163 (6th Cir. 1989)

The authority of the court to limit cross-examination comes into play only

after the defendant has been permitted to exercise sufficient cross-exami-
132 Manual on Recurring Problems in Criminal Trials, fifth edition

nation to satisfy the Sixth Amendment.

United States v. Tolliver, 665 F.2d 1005 (11th Cir. 1982)

United States v. Haimowitz, 706 F.2d 1549 (11th Cir. 1983)

Exposure of a witness’s bias or motivation in testifying is a proper and important function of cross-examination. The Confrontation Clause is violated when an accused is prohibited from engaging in otherwise appropriate

cross-examination designed to demonstrate the bias or motivation of a witness.

Davis v. Alaska, 415 U.S. 308 (1974)

Delaware v. Van Arsdall, 475 U.S. 673 (1986)

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

Cross-examination into any motivation or incentive that a government

witness may have for falsifying testimony is to be given the widest possible

scope, particularly with respect to the testimony of those who have a substantial reason for being cooperative with the government.

United States v. Hall, 653 F.2d 1002 (5th Cir. 1981)

United States v. Lynn, 856 F.2d 430 (1st Cir. 1988)

But see United States v. A & S Council Oil Co., 947 F.2d 1128 (4th Cir. 1991)

(defendant not allowed to attack credibility of government witness through

evidence that witness took otherwise inadmissible polygraph test)

When a cooperating witness who has entered into a plea agreement testifies

for the government against a codefendant, effective cross-examination requires that the codefendant be permitted to inquire into the specific terms

of the plea agreement. This includes questioning designed to demonstrate

the specific crime to which the cooperating witness pled guilty, the range of

punishment the witness is exposed to under the guilty plea, and the potential sentence the witness was exposed to before entering into the

plea agreement.

United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989)

Even when there is no formal plea or “deal” between federal prosecutors

and a witness testifying on behalf of the government, the defendant is permitted to cross-examine the witness regarding any hopes the witness may

entertain for government leniency on charges pending against him or her.

United States v. Towne, 870 F.2d 880 (2d Cir. 1989)

The trial court has the duty to control cross-examination of government

witnesses to prevent it from unduly burdening the record with cumulative

or irrelevant material. The court may limit cross-examination to exclude

repetitive questioning or to avoid extensive and time-wasting exploration

of collateral matters.

United States v. Weiner, 578 F.2d 757 (9th Cir. 1978)
Part V. Evidence 133

4. Interviewing of government witnesses by defense

counsel

As a general rule, a witness belongs neither to the government nor to the

defense.

a. Both sides may interview

Both sides have the right to interview witnesses before trial.

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)

Salemme v. Ristaino, 587 F.2d 81 (1st Cir. 1978)

United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), disapproved on

other grounds by Luce v. United States, 469 U.S. 38 (1984)

No provision for disclosing names and addresses of government witnesses

is included in Federal Rule of Criminal Procedure 16. However, as part of

its inherent power to ensure the proper and orderly administration of justice, the court may require the government to provide the defendant with a

list of witnesses.

United States v. Napue, 834 F.2d 1311 (7th Cir. 1987)

The Fifth Circuit has stated that addresses of government witnesses must

ordinarily be disclosed to the defense.

United States v. Opager, 589 F.2d 799 (5th Cir. 1979)

In a capital case, the defendant is entitled to a list of the witnesses to be

produced at trial unless the court finds by a preponderance of the evidence

that providing the list “may jeopardize the life or safety of any person.”

18 U.S.C. § 3432

If a witness is in protective custody or if for any reason a witness may be

subject to personal danger, it is the duty of the trial court to ensure that

counsel for the defense has access to the witness under controlled arrangements. A better procedure is to allow defense counsel to hear directly

from the witness whether the witness would be willing to talk to him or her,

either alone or in the presence of the witness’s own attorney. The court may

delay access to a witness in protective custody until shortly before trial when

such delay is warranted by the circumstances.

United States v. Walton, 602 F.2d 1176 (4th Cir. 1979)

A witness may of his or her own free will refuse to be interviewed by either

side.

Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)
134 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Witness may refuse to be interviewed by defense counsel

It is imperative that prosecutors and other government officials maintain a

posture of strict neutrality when advising witnesses of their rights and duties with respect to talking to defense counsel.

United States v. Rich, 580 F.2d 929 (9th Cir. 1978)

A defendant’s rights are not violated when a government witness chooses

not to be interviewed.

United States v. Rice, 550 F.2d 1364 (5th Cir. 1977)

United States v. Bittner, 728 F.2d 1038 (8th Cir. 1984)

A government witness may dictate the circumstances under which he or

she will submit to an interview by defense counsel.

United States v. Brown, 555 F.2d 407 (5th Cir. 1977)

A government witness may choose to be interviewed by defense counsel

only in the presence of a government attorney.

United States v. Nardi, 633 F.2d 972 (1st Cir. 1980)

The government has no duty to present its witnesses for interviews. Its duty

is simply not to deny access.

United States v. Pepe, 747 F.2d 632 (11th Cir. 1984)

If a witness declines to be interviewed, defense counsel may not inquire on

cross-examination as to why the witness exercised that right.

United States v. Figurski, 545 F.2d 389 (4th Cir. 1976)

c. Government may not discourage interviewing of witnesses by

defendant

The government may not deny a defendant access to a witness by hiding the

witness.

Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978)

United States v. Henao, 652 F.2d 591 (5th Cir. 1981)

The government’s deliberate concealment of a named eyewitness whose

testimony would admittedly be material constitutes a prima facie deprivation of due process.

Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978)

If defense counsel establishes inability to learn the whereabouts or identity

of eyewitnesses through normal investigative techniques, the trial court may

order the government to disclose the names and addresses of the witnesses.

United States v. Sims, 637 F.2d 625 (9th Cir. 1980)
Part V. Evidence 135

The prosecution may interfere with a defendant’s right of access to a government witness only under the clearest and most compelling circumstances.

Salemme v. Ristaino, 587 F.2d 81 (1st Cir. 1978)

United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), disapproved on

other grounds by Luce v. United States, 469 U.S. 38 (1984)

When the free choice of a potential witness to talk to defense counsel is

constrained by the prosecution without justification, the constraint improperly interferes with the defendant’s right of access to witnesses.

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)

Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)

It is not improper for a government representative to advise a government

witness of his or her right to decline to be interviewed by defense counsel.

United States v. Bittner, 728 F.2d 1038 (8th Cir. 1984)

d. Government may request a temporary restraining order to

prevent harassment of witnesses

Section 1514, Title 18 of the U.S. Code permits the court to issue a temporary restraining order prohibiting the harassment of a victim or witness

in a federal criminal case if the government files an appropriate application

and the court concludes there is a reasonable basis for believing such harassment exists.

United States v. Stewart, 872 F.2d 957 (10th Cir. 1989)

5. Exclusion of witnesses from courtroom

Federal Rule of Evidence 615 mandates that witnesses be excluded from the

courtroom at the request of any party.

Government of the Virgin Islands v. Edinborough, 625 F.2d 472 (3d Cir. 1980)

The circuits are split over who has the burden to show prejudice from the

failure to sequester a witness. The majority require the movant to show

prejudice, but a few circuits place the burden on the government to prove

that failure to sequester was harmless.

United States v. Jackson, 60 F.3d 128 (2d Cir. 1995)

Ordinarily, when Rule 615 is invoked, the government is permitted to have

one case agent in the courtroom during trial.

United States v. Farnham, 791 F.2d 331 (4th Cir. 1986)

Scott v. Fort Bend County, 870 F.2d 164 (5th Cir. 1989)

But see United States v. Jackson, 60 F.3d 128 (2d Cir. 1995) (judge has discretion

to permit more than one case agent in courtroom)

The federal agent in charge of the preparation of a criminal case for trial
136 Manual on Recurring Problems in Criminal Trials, fifth edition

may not be excluded from the courtroom even though that agent is to be a

government witness. Any prejudice from the presence of that witness while

others are testifying can be prevented by requiring the government to present

the testimony of that agent at an early stage of its case.

In re United States, 584 F.2d 666 (5th Cir. 1978)

United States v. Mitchell, 733 F.2d 327 (4th Cir. 1984)

It is reversible error to refuse a timely Rule 615 request to permit only one

of two federal agents to remain in the courtroom during trial if the result is

that the second agent hears the testimony of the first agent before testifying

himself or herself.

United States v. Farnham, 791 F.2d 331 (4th Cir. 1986)

But see United States v. Jackson, 60 F.3d 128 (2d Cir. 1995)

If a witness violates the court’s exclusion order, it is within the discretion of

the court to prohibit that witness from testifying.

United States v. Calhoun, 510 F.2d 861 (7th Cir. 1975)

United States v. Bizzard, 674 F.2d 1382 (11th Cir. 1982)

When a witness fails to obey the court’s exclusion order, the court may exclude the testimony of that witness entirely or may permit that witness to

testify only as to matters about which he or she has not heard the testimony

of other witnesses.

Nick v. United States, 531 F.2d 936 (8th Cir. 1976)

It is a violation of the rule of exclusion of witnesses for counsel to take

notes of the testimony of witnesses and then relay the substance of those

notes to other witnesses.

United States v. Wodtke, 711 F.2d 86 (8th Cir. 1983)

6. Defense counsel conferring with testifying defendant

during recess

It is reversible error for a court to direct a defendant not to consult with his

or her attorney during an overnight recess that is called between the

defendant’s direct examination and cross-examination. Reversal is required

under such circumstances without inquiry into the question of prejudice.

Such an order violates the defendant’s Sixth Amendment right to counsel,

which includes the right to discuss a variety of trial-related matters with

counsel during a lengthy recess in trial.

Geders v. United States, 425 U.S. 80 (1976)

However, the court has discretion to order a defendant not to consult with

counsel during a brief recess between the defendant’s direct examination
Part V. Evidence 137

and cross-examination. The defendant has no right to discuss his or her

testimony with counsel while it is still in progress, and nothing but the ongoing testimony is likely to be discussed in a brief recess between direct

examination and cross-examination. The order condemned in Geders was

of a different character because the normal conversations between attorney

and client that occur during overnight recesses encompass matters beyond

the content of a defendant’s own testimony.

Perry v. Leeke, 488 U.S. 272 (1989)

C. Other Issues

1. Stipulation of facts

Generally, the government is not bound by a defendant’s offer to stipulate

to an element of a crime. The government is free to present to the jury

evidence to establish a complete picture of the events constituting the

charged crime.

United States v. Ellison, 793 F.2d 942 (8th Cir. 1986)

The government is required to stipulate to facts that witnesses would otherwise testify to only if their testimony’s prejudicial aspects outweigh its

probative value.

United States v. De John, 638 F.2d 1048 (7th Cir. 1981)

Before accepting a stipulation of fact from a defendant in a criminal prosecution, the trial judge must make sure that the stipulation is knowingly

and voluntarily made by the defendant.

United States v. Miller, 588 F.2d 1256 (9th Cir. 1978)

The trial judge must address the defendant and ensure that the stipulation

is being made knowingly and voluntarily.

United States v. Miller, 588 F.2d 1256 (9th Cir. 1978)

A stipulation that an identified witness would testify in a certain way is not

a stipulation as to the truth of that testimony. It is error for the court to

treat such a stipulation as a stipulation that a certain element or elements

of the crime have been proven. The stipulation is in fact only a stipulation

that the witness would, if called as a witness, so testify.

United States v. Hellman, 560 F.2d 1235 (5th Cir. 1977)
138 Manual on Recurring Problems in Criminal Trials, fifth edition

2. Role of judge in trial

Trial judges are not mere moderators. They may comment on the evidence,

question witnesses, elicit facts not yet adduced, or clarify those previously

presented.

United States v. Wright, 573 F.2d 681 (1st Cir. 1978)

United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995)

A trial judge has the privilege, and at times the duty, to elicit facts he or she

deems necessary to the clear presentation of the issues. To this end the judge

may examine witnesses who testify, provided that the judge preserves an

attitude of impartiality and guards against giving the jury an impression

that he or she believes the defendant to be guilty.

United States v. Baron, 602 F.2d 1248 (7th Cir. 1979)

Llach v. United States, 739 F.2d 1322 (8th Cir. 1984)

A judge’s questioning of witnesses to clarify evidence for the jury was appropriate despite the fact that the questions may have permitted the witness to emphasize testimony helpful to the prosecution or elicited answers

detrimental to the defense.

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)

The trial judge is well advised to refrain from any challenging questioning

of a defendant, and especially to refrain from propounding any question

that indicates the judge’s disbelief in the essence of the defense.

Johnson v. Scully, 727 F.2d 222 (2d Cir. 1984)

A trial judge may interrogate a witness to clarify the witness’s testimony or

to ensure that a case is fairly tried. However, when the attorneys are competently conducting their cases, it is improper for the trial judge to question

the witnesses. By doing so, the judge places the opposing counsel in a disadvantageous position. The attorney may hesitate to object to the judge’s examination for fear of creating, or giving the appearance of creating, a conflict with the judge.

United States v. Welliver, 601 F.2d 203 (5th Cir. 1979), overruled on other grounds

by United States v. Adamson, 700 F.2d 953 (5th Cir. 1983)

In a complex trial, intervention by the judge is often needed to clarify what

is going on. If the facts are becoming muddled and neither side is succeeding in attempts to clarify them, the judge performs an important duty by

interposing clarifying comments or questions.

United States v. Hickman, 592 F.2d 931 (6th Cir. 1979)

United States v. Laurins, 857 F.2d 529 (9th Cir. 1988)

But see United States v. Saenz, 134 F.3d 697 (9th Cir. 1998)
Part V. Evidence 139

A judge’s absence during a criminal trial, including court proceedings after

the jury begins deliberations, is error of constitutional magnitude.

Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995)

But see United States v. Love, 134 F.3d 595 (4th Cir. 1998) (unlike the judge in

Riley, the judge did not abdicate judicial control over the process); Haith v.

United States, 342 F.2d 158 (3d Cir. 1965) (judge’s absence is reversible error

only if defendant suffered prejudice as a result)

3. Comment on evidence by court

In instructing the jury, a trial judge may comment on the evidence. The

judge must do so with great care, however, so as not to unduly prejudice the

thinking of the jury.

United States v. Martin, 740 F.2d 1352 (6th Cir. 1984)

A judge may, whenever necessary, assist the jury in arriving at a just conclusion by explaining and commenting on the evidence. However, the judge

must make it clear to the jury that all matters of fact are submitted for their

determination.

United States v. Saenz, 747 F.2d 930 (5th Cir. 1984)

In commenting on evidence, the trial judge need not refer to all of it, but

should ensure that the facts are accurately discussed and that, if the evidence is summarized, both sides are analyzed. The judge’s comments should

be balanced. A trial judge is permitted to express opinions on the interplay

of the evidence as long as the judge stays within the judge’s role in the factfinding process and explains to the jury that he or she is only assisting them

as the ultimate triers of fact. The fundamental principle circumscribing a

trial judge’s power to comment on the evidence is that the comment must

serve to instruct and assist the jury in understanding the facts and issues in

dispute.

United States v. Tello, 707 F.2d 85 (4th Cir. 1983)

In a criminal case a plea of not guilty places every issue in doubt, and not

even undisputed facts may be removed from the jury’s consideration, either by direction or by omission in the charge. A trial judge may not step in

and direct a finding of contested fact in favor of the prosecution regardless

of how overwhelmingly the evidence may point in that direction. The trial

judge is barred from attempting to override or interfere with the jurors’

independent judgment in a manner contrary to the interests of the accused.

United States v. Argentine, 814 F.2d 783 (1st Cir. 1987)

United States v. Mentz, 840 F.2d 315 (6th Cir. 1988)

When the court grants a defendant’s motion for a judgment of acquittal in

a multidefendant case, the preferable practice is to simply acknowledge the
140 Manual on Recurring Problems in Criminal Trials, fifth edition

acquitted defendant’s absence and to instruct the jury that the acquittal

should not affect their deliberations as to the remaining defendants. It is

not necessary to inform the jury that the codefendant’s case was dismissed

because the government introduced insufficient evidence on which to base

a conviction. The jury may infer from such a comment that the court believes there is sufficient evidence to convict the remaining defendants.

United States v. Rapp, 871 F.2d 957 (11th Cir. 1989)

4. Permitting reopening after resting

It is within the discretion of the trial court to permit a party to reopen its

case after resting.

United States v. Alderete, 614 F.2d 726 (10th Cir. 1980)

United States v. Washington, 861 F.2d 350 (2d Cir. 1988)

The government may be permitted to reopen its case even after the defendant has moved for acquittal at the close of the government’s case.

United States v. Webb, 533 F.2d 391 (8th Cir. 1976)

A court should, however, be reluctant to permit reopening of a case after a

party rests.

United States v. White, 583 F.2d 899 (6th Cir. 1978)

In ruling on a motion to reopen, the court should consider the timeliness

of the motion, the character of the additional testimony, and the effect of

granting the motion. The party moving to reopen must provide a reasonable explanation for failure to present the additional evidence during its

case-in-chief.

United States v. Larson, 596 F.2d 759 (8th Cir. 1979)

United States v. Walker, 772 F.2d 1172 (5th Cir. 1985)

The evidence proffered on a motion to reopen should be relevant, admissible,

technically adequate, and helpful to the jury in ascertaining guilt or innocence. The belated receipt of such evidence should not imbue it with distorted importance, prejudice the opposing party’s case, or preclude opposing counsel from having an adequate opportunity to rebut the additional

evidence.

United States v. Walker, 772 F.2d 1172 (5th Cir. 1985)

5. Bench conferences

Federal Rule of Criminal Procedure 43(c) provides that a defendant need

not be present at a conference or argument on a question of law, and need

not sign a written waiver of his or her presence.

Egger v. United States, 509 F.2d 745 (9th Cir. 1975)
Part V. Evidence 141

United States v. Gunter, 631 F.2d 583 (8th Cir. 1980)

In re Shriner, 735 F.2d 1236 (11th Cir. 1984)

The decision whether to conduct bench conferences, or sidebar discussions,

is a matter within the trial court’s discretion.

United States v. Laurins, 857 F.2d 529 (9th Cir. 1988)

All bench conferences must be fully reported. It is error not to have the

court reporter record bench conferences.

United States v. Snead, 527 F.2d 590 (4th Cir. 1975)

The Fifth Circuit has suggested that when a bench conference is held the

jury be excluded from the courtroom or the conference be held in chambers so that it can be completely reported.

United States v. Brumley, 560 F.2d 1268 (5th Cir. 1977)
142 Manual on Recurring Problems in Criminal Trials, fifth edition

Part VI

Argument

A. Opening Statement

1. By the prosecutor

The purpose of the government’s opening statement is to give the jury the

broad outlines of its case so that the jury can better understand it. The prosecutor should not depart from that purpose by including overdramatic,

unsavory characterizations that serve to poison the jury’s mind against the

defendant.

United States v. Somers, 496 F.2d 723 (3d Cir. 1974)

But see United States v. Helbling, 209 F.3d 226 (3d Cir. 2000)

It is improper for a prosecutor to make remarks in an opening statement

that communicate his or her own personal evaluation of the case to the

jury.

United States v. Davis, 548 F.2d 840 (9th Cir. 1977)

2. By defense counsel

Defense counsel has the right to make an opening statement even if counsel

does not intend to call any witnesses but instead to make the defendant’s

case through cross-examination of government witnesses. The function of

the defense’s opening statement is to enable defense counsel to inform the

court and jury what the defense expects to prove. The importance of this

function is not diminished by the fact that defense counsel expects to prove

the defense’s theory through cross-examination of government witnesses.

United States v. Stanfield, 521 F.2d 1122 (9th Cir. 1975)

United States v. Hershenow, 680 F.2d 847 (1st Cir. 1982)

The timing of defense counsel’s opening statement is within the trial court’s

discretion. The trial court may require the opening statement of defense

counsel to be given immediately following the opening statement of government counsel or may permit defense counsel to give an opening statement after all government evidence has been received.

United States v. Rivera, 778 F.2d 591 (10th Cir. 1985)
Part VI. Argument 143

B. Final Argument

1. Right to final argument

Denial of the defendant’s opportunity for final argument abridges the defendant’s Sixth Amendment right to present a defense no matter how strong

the case for the prosecution may appear to the court.

Patty v. Bordenkircher, 603 F.2d 587 (6th Cir. 1979)

2. Control by court

The trial court may exercise broad discretion in controlling closing arguments and in ensuring that arguments do not stray unduly from the mark.

United States v. Wables, 731 F.2d 440 (7th Cir. 1984)

3. Time limitations

So long as the defendant has an opportunity to make all legally tenable

arguments that are supported by the facts of the case, the trial court may

limit the length of final arguments.

United States v. Gaines, 690 F.2d 849 (11th Cir. 1982)

United States v. Bednar, 728 F.2d 1043 (8th Cir. 1984)

4. Prosecutor’s comment on defendant’s failure to testify

a. Direct reference to defendant’s failure to testify

A prosecutor’s direct reference to a defendant’s failure to testify violates the

defendant’s privilege against compelled self-incrimination.

Griffin v. California, 380 U.S. 609 (1965)

But see Portuondo v. Agard, 529 U.S. 61 (2000) (a prosecutor’s comment that a

defendant who testified had the opportunity to tailor his testimony after

hearing other witnesses does not violate the defendant’s Fifth and Sixth

Amendment rights)

However, the Supreme Court ruled that a prosecutor’s comment that “[the

defendant] could have taken the stand and explained it to you, anything he

wanted to” did not violate the Fifth Amendment because it was a fair response to an argument initiated by defense counsel to the effect that counsel’s

nontestifying client had not been given a chance to explain his side of the

story.

United States v. Robinson, 485 U.S. 25 (1988)
144 Manual on Recurring Problems in Criminal Trials, fifth edition

b. Indirect reference to defendant’s failure to testify

The prosecuting attorney must strictly observe the obligation to avoid any

adverse comment to the jury on the defendant’s failure to testify. The test is

whether, in the circumstances of the case, the language used was manifestly

intended to be a comment on the failure of the accused to testify or was of

such character that the jury would naturally and necessarily take it to be so.

United States v. Williams, 521 F.2d 950 (D.C. Cir. 1975)

United States v. Palacios, 612 F.2d 972 (5th Cir. 1980)

Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988)

United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988)

A prosecutor’s closing argument improperly emphasizes the defendant’s

failure to testify when the prosecutor argues that critical facts in the case

have not been controverted and those facts could not have been controverted by anyone other than the defendant.

Runnels v. Hess, 653 F.2d 1359 (10th Cir. 1981)

Lent v. Wells, 861 F.2d 972 (6th Cir. 1988)

Oblique comments on a defendant’s failure to testify, if sufficiently suggestive, are as unlawful as direct comments.

United States v. Brown, 546 F.2d 166 (5th Cir. 1977)

In his or her closing argument, the prosecutor may refer to government

evidence as uncontradicted if witnesses other than the defendant could have

contradicted the evidence. It is impermissible to state that the evidence was

uncontradicted if the defendant was the only person who could have contradicted the evidence.

United States v. Sorzano, 602 F.2d 1201 (5th Cir. 1979)

Runnels v. Hess, 653 F.2d 1359 (10th Cir. 1981)

Raper v. Mintzes, 706 F.2d 161 (6th Cir. 1983)

Williams v. Lane, 826 F.2d 654 (7th Cir. 1987)

5. Prosecutor’s comment on defendant’s failure to

present exculpatory evidence

The prosecutor may properly call the jury’s attention to the defendant’s

failure to present alibi witnesses in support of his or her alibi defense.

United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976)

The prosecutor may comment on a defendant’s failure to explain evidence

against him or her after the defendant has waived the privilege by taking

the witness stand.

Caminetti v. United States, 242 U.S. 470 (1917)
Part VI. Argument 145

The prosecutor may properly comment on the defendant’s failure to present exculpatory evidence as long as the prosecutor does not call attention

to the defendant’s failure to testify.

United States v. Fleishman, 684 F.2d 1329 (9th Cir. 1982), overruled on other

grounds by United States v. Ibarra-Alcarez, 830 F.2d 968 (9th Cir. 1987)

Moore v. Wyrick, 760 F.2d 884 (8th Cir. 1985)

United States v. Kessi, 868 F.2d 1097 (9th Cir. 1989)

A distinction exists between a comment by the prosecutor concerning failure of the “defense” to counter or explain evidence and failure of the “defendant” to do so. A comment about the former does not violate a defendant’s

Fifth Amendment rights.

United States v. Fogg, 652 F.2d 551 (5th Cir. 1981)

United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988)

6. Improper arguments by government

It is improper for a prosecutor to appeal to the emotions of the jurors during closing argument.

In re Bushkin Assocs., Inc., 864 F.2d 241 (1st Cir. 1989)

It is improper for the prosecutor to assert his or her personal belief in the

truth or falsity of any testimony or the guilt of any defendant. Such expressions are a form of unsworn, unchecked testimony.

United States v. Gallagher, 576 F.2d 1028 (3d Cir. 1978)

United States v. Bess, 593 F.2d 749 (6th Cir. 1979)

United States v. Saa, 859 F.2d 1067 (2d Cir. 1988)

But see United States v. Jordan, 810 F.2d 262 (D.C. Cir. 1987)

It is improper for a prosecutor to express his or her personal opinion that a

defendant has lied on the stand. However, if there is uncontroverted evidence that a testifying defendant has previously lied about a relevant matter, the prosecutor may fairly characterize such testimony as a lie.

Vargas v. United States Parole Comm’n, 865 F.2d 191 (9th Cir. 1988)

It is improper for a prosecutor to argue that in order to acquit the defendant, the jury must find that the government’s witnesses lied to them. This

argument is incorrect because it ignores the possibility that the jury may

return a verdict of not guilty because it finds the evidence insufficient to

convict the defendant by proof beyond a reasonable doubt.

United States v. Vargas, 583 F.2d 380 (7th Cir. 1978)

United States v. Teslim, 869 F.2d 316 (7th Cir. 1989)

But see United States v. Amerson, 185 F.3d 676 (7th Cir. 1999)

A prosecutor’s “golden rule” argument, which asks jurors to put themselves
146 Manual on Recurring Problems in Criminal Trials, fifth edition

in the defendant’s shoes and ask themselves what they would have done in

that situation, is improper. This argument encourages the jury to depart

from neutrality and decide the case on the basis of personal involvement or

bias, rather than on the evidence.

United States v. Teslim, 869 F.2d 316 (7th Cir. 1989)

It is error for the prosecutor to comment on the conduct of the defendant

during the trial. Unless the defendant takes the stand, the defendant’s personal appearance or conduct at the trial is irrelevant to the question of guilt

or innocence. If the defendant remains impassive during the testimony of

his or her accuser, the defendant is only conforming to the standard of deportment that courts have a right to expect from all participants in the trial

process.

Cunningham v. Perini, 655 F.2d 98 (6th Cir. 1981)

A prosecutor who comments on the courtroom conduct of a defendant

who has not testified and states to the jury that it may consider that conduct as evidence of guilt violates the defendant’s right to a fair trial.

United States v. Carroll, 678 F.2d 1208 (4th Cir. 1982)

United States v. Pearson, 746 F.2d 787 (11th Cir. 1984)

But see United States v. Gatto, 995 F.2d 449 (3d Cir. 1993)

It is reversible error for the prosecutor to imply that the defendant’s silence

after receiving a Miranda warning indicates guilt.

United States v. Baker, 999 F.2d 412 (9th Cir. 1993)

The prosecution may not imply that the government would not have brought

the case unless the defendant were guilty. It may not attempt to invoke the

sanction of its office or of the government itself as a basis for conviction.

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), overruled on other grounds

by United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992)

It is reversible error for the prosecutor to state that the case would not have

been presented had the government not believed that the defendant was

guilty.

United States v. Bess, 593 F.2d 749 (6th Cir. 1979)

It is reversible error for the prosecution to argue that the jury should find

the defendant guilty because an earlier jury found a coconspirator guilty of

the same offenses.

United States v. Miranda, 593 F.2d 590 (5th Cir. 1979)

United States v. Mitchell, 1 F.3d 235 (4th Cir. 1993)

Neither the prosecution nor the defense may say anything to the jury implying that evidence supporting its position exists but has not been in-
Part VI. Argument 147

troduced in the trial.

United States v. Morris, 568 F.2d 396 (5th Cir. 1978)

It is error for a prosecutor to suggest to the jurors that they would be “violating [their] sacred oath before God” if they turned the defendant loose.

United States v. Juarez, 566 F.2d 511 (5th Cir. 1978)

The prosecutor is prohibited from making race-conscious or racially biased arguments.

McCleskey v. Kemp, 481 U.S. 279 (1987)

United States v. Hernandez, 865 F.2d 925 (7th Cir. 1989) (reference to “Cuban

drug dealers” improper)

But see United States v. Weiss, 930 F.2d 185 (2d Cir. 1991) (reference to “The

Merchant of Venice” not improper)

It is improper for a prosecutor to argue that the testimony of an undercover

black police officer should be believed because the defendant is black and it

is unreasonable to believe that a black police officer would give false testimony against a black defendant.

McFarland v. Smith, 611 F.2d 414 (2d Cir. 1979)

7. Arguments must be from the record

Closing arguments of both prosecutor and defense counsel must be derived from the record of the trial.

United States v. Dorr, 636 F.2d 117 (5th Cir. 1981)

United States v. Pool, 660 F.2d 547 (5th Cir. 1981)

The prosecutor is free to draw any reasonable inferences from the evidence

adduced at trial.

United States v. Durham, 211 F.3d 437 (7th Cir. 2000)

It is improper to draw inferences that are so unreasonable as to be akin to

the presentation of new evidence to the jury.

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)

8. Duty of court to intervene in improper argument

Even though attorneys are given considerable latitude in presenting arguments to a jury in accord with the principles enunciated in United States v.

Young, 470 U.S. 1 (1985), the trial judge is expected to act as the “governor”

of the proceeding, “‘for the purpose of assuring its proper conduct.’” Id.

(quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). See ABA Standards for Criminal Justice, Special Functions of the Trial Judge, Standard

6-2.4 (3d ed. 2000).
148 Manual on Recurring Problems in Criminal Trials, fifth edition

When an improper closing argument is being made by the prosecution, the

trial judge has an obligation to intervene at once to ensure protection of the

defendant’s right to a fair trial.

United States v. Corona, 551 F.2d 1386 (5th Cir. 1977)

United States v. Garza, 608 F.2d 659 (5th Cir. 1979)

If a prosecuting attorney improperly refers to the failure of the defendant

to take the stand, the trial judge should immediately admonish the jury

that the law does not compel the defendant to testify and that the jurors are

to draw no inference of guilt by reason of the defendant’s failure to take the

witness stand.

United States v. Buege, 578 F.2d 187 (7th Cir. 1978)

See also United States v. Cotnam, 88 F.3d 487 (7th Cir. 1996)

9. Comment on failure of codefendant to testify

Comments by defense counsel that implicitly or explicitly ask the jury to

infer the guilt of a codefendant who has not testified are improper.

De Luna v. United States, 308 F.2d 140 (5th Cir. 1962)

United States v. Allende, 486 F.2d 1351 (9th Cir. 1973)

United States v. McClure, 734 F.2d 484 (10th Cir. 1984)

United States v. Mena, 863 F.2d 1522 (11th Cir. 1989)

But see United States v. Hardin, 209 F.3d 652 (7th Cir. 2000)

C. Vouching for Witness

It is improper for the prosecution to vouch for the credibility of a government witness. To vouch for a government witness is to reassure the jury

that the witness’s testimony may be accepted as being true.

Vouching for a witness has occurred if the jury could reasonably believe

that the prosecutor was indicating personal belief in that witness’s credibility. It is improper for the prosecutor to place the prestige of the government behind a witness by making personal assurances of the veracity of

that witness.

United States v. Dennis, 786 F.2d 1029 (11th Cir. 1986), reh’g granted in part on

other grounds, 804 F.2d 1208 (11th Cir. 1986)

It is improper vouching for the prosecution, after an assistant U.S. attorney

has testified, to make reference to the credibility of the office of the U.S.

attorney.

United States v. West, 680 F.2d 652 (9th Cir. 1982)
Part VI. Argument 149

It is improper vouching for the prosecution to make reference to a provision in the plea agreement of a government witness requiring that witness to submit to a polygraphic examination.

United States v. Brown, 720 F.2d 1059 (9th Cir. 1983)

The majority of circuits allow the government to admit evidence of the

truthfulness provisions of a plea agreement on direct examination of a witness, before any challenge to the witness’s credibility.

United States v. Lord, 907 F.2d 1028 (10th Cir. 1990)

See also United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993); United States v.

Spriggs, 996 F.2d 320 (D.C. Cir. 1993)

The Second and Eleventh Circuits prohibit introduction of truthfulness

provisions until the defense challenges the witness’s credibility.

United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986)

United States v. Cosentino, 844 F.2d 30 (2d Cir. 1988)

When the prosecutor improperly vouches for the veracity of a witness, the

trial judge should strike the remark and immediately instruct jurors that

they may consider no evidence other than that presented to them, that the

prosecutor is an advocate, not a sworn witness, and that they must treat the

prosecutor’s assertion as an argument that they are free to reject.

United States v. Modica, 663 F.2d 1173 (2d Cir. 1981)
150 Manual on Recurring Problems in Criminal Trials, fifth edition

Part VII

Multiple Defendants

A. Severance of Defendants

Rule 14 of the Federal Rules of Criminal Procedure provides as follows:

If it appears that a defendant or the government is prejudiced by a joinder

of offenses or of defendants in an indictment or information or by such

joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other

relief justice requires. In ruling on a motion by defendant for severance

the court may order the attorney for the government to deliver to the

court for inspection in camera any statements or confessions made by the

defendants which the government intends to introduce in evidence at the

trial.

A Rule 14 claim assumes that the initial joinder of the defendants was proper

but challenges the defendants’ joint trial as unduly prejudicial. In contrast,

a Rule 8(b) claim questions the propriety of joining two or more defendants in a single indictment in the first instance.

United States v. Morales, 868 F.2d 1562 (11th Cir. 1989)

1. Individuals indicted together are ordinarily to be tried

together

The general rule, especially in conspiracy cases, is that persons jointly indicted should be tried together.

Zafiro v. United States, 506 U.S. 534 (1993)

United States v. Haynes, 16 F.3d 29 (2d Cir. 1994)

United States v. Krout, 66 F.3d 1420 (5th Cir. 1995)

But see United States v. Breinig, 70 F.3d 850 (6th Cir. 1995); United States v.

Mayfield, 189 F.3d 895 (9th Cir. 1999)

The trial court has wide discretion in ruling on a motion to sever trials of

defendants who have been properly joined.

Zafiro v. United States, 506 U.S. 534 (1993)

United States v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995)

United States v. Breinig, 70 F.3d 850 (6th Cir. 1995)

United States v. Gilliam, 167 F.3d 628 (D.C. Cir. 1999)
Part VII. Multiple Defendants 151

Rule 8(b), not Rule 8(a), governs joinder of multiple-defendant, multipleoffense cases.

United States v. Turoff, 853 F.2d 1037 (2d Cir. 1988)

United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988)

United States v. Doherty, 867 F.2d 47 (1st Cir. 1989)

2. When joinder not permitted

Joinder is not permitted in conspiracy cases in which the substantive offenses alleged in the indictment fall outside the scope of the conspiracy

with which the defendant is charged.

United States v. Castro, 829 F.2d 1038 (11th Cir. 1987)

3. Better chance of acquittal does not warrant severance

To secure severance, a defendant must demonstrate that he or she will suffer substantial prejudice at a joint trial, not just that he or she stands a better chance of acquittal at a separate trial.

United States v. Serlin, 538 F.2d 737 (7th Cir. 1976)

United States v. Magnano, 543 F.2d 431 (2d Cir. 1976)

United States v. Doyle, 60 F.3d 396 (8th Cir. 1995)

4. Motion for severance by defendant claiming need for

testimony of codefendant

When a defendant seeks severance in order to secure the testimony of a

codefendant, the defendant must demonstrate the following: (1) a bona

fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the codefendant will in fact testify

if the cases are severed. If the movant makes such a showing, the court must

examine the significance of the testimony to the movant’s theory of defense, assess the extent of prejudice caused by the absence of the testimony,

pay close attention to considerations of judicial economy, and give weight

to the timeliness of the motion.

United States v. Hewes, 729 F.2d 1302 (11th Cir. 1984)

United States v. Dickey, 736 F.2d 571 (10th Cir. 1984)

United States v. Drougas, 748 F.2d 8 (1st Cir. 1984)

United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989)

United States v. McKinney, 53 F.3d 664 (5th Cir. 1995)

United States v. Cobb, 185 F.3d 1193 (11th Cir. 1999)
152 Manual on Recurring Problems in Criminal Trials, fifth edition

One of the relevant considerations is the sufficiency of the showing that the

codefendant would in fact testify at a severed trial and would waive his or

her Fifth Amendment privilege.

United States v. Lyles, 593 F.2d 182 (2d Cir. 1979)

United States v. Wilwright, 56 F.3d 586 (5th Cir. 1995)

It is not an abuse of judicial discretion to deny a defendant’s motion for

severance that is based on a codefendant’s offer to testify for the defendant

provided that the codefendant is tried first.

United States v. Gay, 567 F.2d 916 (9th Cir. 1978)

United States v. Becker, 585 F.2d 703 (4th Cir. 1978)

United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989)

Mack v. Peters, 80 F.3d 230 (7th Cir. 1996)

United States v. Cobb, 185 F.3d 1193 (11th Cir. 1999)

Severance is not appropriate if the offer of the codefendant to provide exculpatory testimony is conditioned on the defendant’s being tried last. The

codefendant would be likely to waive the privilege against self-incrimination

only if he or she had already been acquitted.

United States v. Bari, 750 F.2d 1169 (2d Cir. 1984)

Conclusory statements by a defense counsel who is moving for severance

are insufficient to establish that a codefendant’s testimony at a separate trial

would exculpate that counsel’s client. The defense counsel who is moving

for severance must proffer facts sufficiently detailed to allow the court to

conclude that the testimony of the codefendant would in fact be substantially exculpatory of the defendant at trial.

United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989)

United States v. Reavis, 48 F.3d 763 (4th Cir. 1995)

5. Motion for severance based on antagonistic defenses

Rule 14 does not require severance as a matter of law when codefendants

present “mutually antagonistic defenses.”

Zafiro v. United States, 506 U.S. 534 (1993)

For severance based on antagonistic defenses to be warranted, the defenses

must be antagonistic to the point of being irreconcilable and mutually exclusive. They must be so antagonistic that in order for the jury to believe

the defense of one defendant, it must necessarily disbelieve the defense of

the other defendant.

United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976)

United States v. Talavera, 668 F.2d 625 (1st Cir. 1982)

United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988)

United States v. Sherlock, 865 F.2d 1069 (9th Cir. 1989)
Part VII. Multiple Defendants 153

United States v. Turk, 870 F.2d 1304 (7th Cir. 1989)

United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995)

United States v. Shivers, 66 F.3d 938 (8th Cir. 1995)

Severance is not required simply because one defendant may wish to comment on another defendant’s refusal to testify.

United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976)

The defendant must show that a joint trial would be so prejudicial that the

court must exercise its discretion in only one way, that is, to grant the

defendant’s motion for severance.

United States v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987)

6. Defendant’s desire to testify on one count but not on

another

If the defendant moves to sever the trial of one count of the indictment

from the trial of another, severance is warranted only if the defendant has

made a convincing showing that he or she has both important testimony to

give concerning one count and a strong need to refrain from testifying on

the other.

United States v. Jardan, 552 F.2d 216 (8th Cir. 1977)

United States v. Hayes, 861 F.2d 1225 (10th Cir. 1988)

United States v. Quintero, 872 F.2d 107 (5th Cir. 1989)

The court must then weigh considerations of economy and expedition in

judicial administration against the defendant’s interest in having a free choice

with respect to testifying.

United States v. Valentine, 706 F.2d 282 (10th Cir. 1983)

7. Factors to be considered by court in assessing motion

for severance

When assessing the merits of a severance motion, the trial court must balance the possibility of prejudice to the defendant against the public interest

in judicial efficiency and economy. Severance should be granted only if the

defendant can demonstrate that a joint trial will result in specific and compelling prejudice to the conduct of his or her defense.

United States v. Walker, 720 F.2d 1527 (11th Cir. 1983)

United States v. Sherlock, 865 F.2d 1069 (9th Cir. 1989)
154 Manual on Recurring Problems in Criminal Trials, fifth edition

8. Defendant’s motion for severance waived if not

renewed at close of evidence

A defendant’s motion for severance is waived if not renewed at the close of

the evidence, since it is at that point that any prejudice resulting from a

joint trial is ascertainable.

United States v. Marin-Cifuentes, 866 F.2d 988 (8th Cir. 1989)

United States v. Brown, 870 F.2d 1354 (7th Cir. 1989)

United States v. Hudson, 53 F.3d 744 (6th Cir. 1995)

B. Bruton Rule

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that

the Confrontation Clause of the Sixth Amendment was violated when the

confession of one defendant, implicating another defendant, was placed

before the jury at the defendants’ joint trial and the confessing defendant

did not take the witness stand and was therefore not subject to cross-examination. This was a violation even though the court gave the jury a cautionary instruction that the confession was to be considered only as evidence against the confessing defendant.

In Richardson v. Marsh, 481 U.S. 200 (1987), the Court declined to extend

the Bruton rule. It held that the Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s confession that is redacted to

eliminate the defendant’s name and any other reference to the defendant’s

existence. In Richardson, evidence introduced after the codefendant’s redacted statement caused the statement to inculpate the defendant. However, the Court found that such “contextual” incrimination did not violate

Bruton because the jury was likely to obey a cautionary instruction to consider the statement itself as evidence only against the confessing defendant.

In Gray v. Maryland, 523 U.S. 185 (1998), the Court ruled that redactions

that simply replace a name with an obvious blank space or other indication

of alteration fall under the Bruton rule rather than the Richardson limitation.

In multidefendant cases, the court should explore the possibility of a Bruton

problem before the potential jurors are sworn in, since the government may

be planning to offer in evidence a pretrial confession by one of the codefendants. The court must consider whether there is a possible Bruton problem

and, if so, methods of avoiding that problem.
Part VII. Multiple Defendants 155

1. Determining whether Bruton rule is applicable

Bruton does not apply to the confession of one codefendant if that confession does not refer to the other defendant and the jury is instructed that

the confession is received as evidence only against the confessing defendant.

Richardson v. Marsh, 481 U.S. 200 (1987)

Bruton does not apply to the confession of a codefendant if the codefendant testifies at trial, because he or she is then subject to cross-examination

by the other defendant or defendants. Since the codefendant is available for

cross-examination, the Confrontation Clause is not violated and severance

is not constitutionally mandated.

Nelson v. O’Neil, 402 U.S. 622 (1971)

United States v. Morgan, 562 F.2d 1001 (5th Cir. 1977)

Hodges v. Rose, 570 F.2d 643 (6th Cir. 1978)

However, if a testifying codefendant refuses to allow cross-examination by

another defendant, Bruton applies.

Toolate v. Borg, 828 F.2d 571 (9th Cir. 1987)

In Cruz v. New York, 481 U.S. 186 (1987), the Supreme Court abolished the

“interlocking confessions” exception to the Bruton rule that had been espoused by four Justices in Parker v. Randolph, 442 U.S. 62 (1979). In Parker,

a plurality of the Court had concluded that if two defendants have made

full confessions, Bruton does not apply and the “interlocking confessions”

are admissible against their respective makers in a joint trial. Cruz held that

when a nontestifying codefendant’s confession incriminating another defendant is not directly admissible against that defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed

not to consider it as evidence against the defendant, and even if the

defendant’s own confession is admitted against him or her.

If a nontestifying codefendant’s confession is introduced in rebuttal to impeach a testifying defendant’s explanation of his or her own confession,

and the jury is properly instructed that the nontestifying codefendant’s confession is not to be considered for its truth, the Confrontation Clause is not

violated and Bruton does not apply.

Tennessee v. Street, 471 U.S. 409 (1985)

Some circuits have held that the Bruton rule does not apply to an out-ofcourt statement that is admissible under Federal Rule of Evidence

801(d)(2)(E) as a coconspirator statement.

United States v. Archbold-Newball, 554 F.2d 665 (5th Cir. 1977)

United States v. Warren, 578 F.2d 1058 (5th Cir. 1978), overruled on other grounds

by United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988)

United States v. Goins, 593 F.2d 88 (8th Cir. 1979)
156 Manual on Recurring Problems in Criminal Trials, fifth edition

Bruton does not apply to an out-of-court statement that is admissible as an

excited utterance under Federal Rule of Evidence 803(2).

McLaughlin v. Vinzant, 522 F.2d 448 (1st Cir. 1975)

United States v. Vazquez, 857 F.2d 857 (1st Cir. 1988)

At least one circuit has held that Bruton does not apply to an out-of-court

statement against penal interest.

United States v. Kelley, 526 F.2d 615 (8th Cir. 1975)

Contra United States v. Flores, 985 F.2d 770 (5th Cir. 1993)

2. Avoidance of Bruton problem

When the court learns before trial that the government proposes to introduce

an out-of-court confession of one defendant, the court should make inquiry as to the confession intended to be used and then decide what, if any,

remedial steps are required. The court may

1. exclude the confession at a joint trial;

2. delete references in the confession to the codefendant against whom

the confession is inadmissible;

3. order severance of the defendants’ trials; or

4. try the defendants together but before different juries.

If the confession of a nontestifying codefendant is to be admitted at a joint

trial, it must be redacted to eliminate any reference to the non-confessing

defendant. In editing the confession, the court must eliminate both the nonconfessing defendant’s name and any references to his or her existence.

Richardson v. Marsh, 481 U.S. 200 (1987)

Gray v. Maryland, 523 U.S. 185 (1998)

United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988)

The court may avoid a Bruton problem by conducting a joint trial before

two juries, so that the confessing statement made by one defendant is heard

only by the jury that is trying that defendant.

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)

United States v. Lewis, 716 F.2d 16 (D.C. Cir. 1983)

Smith v. De Robertis, 758 F.2d 1151 (7th Cir. 1985)

C. Calling of Codefendant as a Witness

In a joint trial a defendant may not call to the witness stand a codefendant

who has not pled guilty and who has indicated an intention to assert the
Part VII. Multiple Defendants 157

privilege against self-incrimination.

United States v. Roberts, 503 F.2d 598 (9th Cir. 1974)

When a codefendant who has pled guilty appears as a government witness

in a defendant’s trial, the codefendant must testify honestly and completely

about his or her own participation in the crime for which the defendant is

being tried. The codefendant may be examined by defense counsel concerning all aspects of his or her own involvement in the crime, as well as the

disposition of any charges entered against him or her.

United States v. Wiesle, 542 F.2d 61 (8th Cir. 1976)

D. Disclosure to Jury of Codefendant’s

Guilty Plea

Courts and prosecutors are generally prohibited from mentioning to the

jury that a codefendant has pled guilty or been convicted.

United States v. Griffin, 778 F.2d 707 (11th Cir. 1985)

1. May be reversible error to disclose guilty plea of

codefendant to jury

It is plain error for a prosecutor to make reference in an opening statement

to the guilty plea of a codefendant.

United States v. Hansen, 544 F.2d 778 (5th Cir. 1977)

United States v. Handly, 591 F.2d 1125 (5th Cir. 1979)

If jurors learn in some way of a codefendant’s guilty plea, the trial judge

should immediately admonish them against transferring the guilt of that

defendant to any other defendant. It is incumbent upon the trial judge to

take appropriate action to protect the substantive rights of the remaining

defendants.

United States v. DeLucca, 630 F.2d 294 (5th Cir. 1980)

If a codefendant pleads guilty during trial, the jury should not be advised

that the codefendant is no longer in court because he or she has pled guilty

or that the action against the codefendant has been “disposed of.”

United States v. Gibbons, 602 F.2d 1044 (2d Cir. 1979)

If a codefendant pleads guilty during trial, the court should give the jury an

instruction to the following effect:

You will observe that defendant ________ is no longer in court. The fact

that he [or she] is no longer here is because of a ruling made by the court.

The reasons for that ruling are not your concern. His [or her] absence
158 Manual on Recurring Problems in Criminal Trials, fifth edition

should not be considered by you as affecting in any way your determination of the guilt or innocence of any other defendant.

United States v. Griffin, 778 F.2d 707 (11th Cir. 1985)

2. Occasions when disclosure of codefendant’s guilty

plea is proper

Evidence of a codefendant’s guilty plea may be brought out by defense counsel to impeach the testimony of the codefendant or to show the codefendant’s

acknowledgment of his or her participation in the offense.

United States v. Wiesle, 542 F.2d 61 (8th Cir. 1976)

If a codefendant who has pled guilty takes the witness stand, evidence of his

or her guilty plea may be introduced by the prosecution or the defense in

order to aid the jury in assessing the codefendant’s credibility.

United States v. Baez, 703 F.2d 453 (10th Cir. 1983)

United States v. Griffin, 778 F.2d 707 (11th Cir. 1985)

United States v. Dworken, 855 F.2d 12 (1st Cir. 1988)

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)

United States v. Portac, Inc., 869 F.2d 1288 (9th Cir. 1989)

If the guilty plea of a codefendant is properly introduced into evidence, the

court should instruct the jury that that guilty plea may not be considered as

substantive evidence of another defendant’s guilt. The codefendant’s plea

may be considered only as evidence relevant to the codefendant’s own credibility.

United States v. Little Boy, 578 F.2d 211 (8th Cir. 1978)

United States v. Baez, 703 F.2d 453 (10th Cir. 1983)

United States v. Louis, 814 F.2d 852 (2d Cir. 1987)

United States v. Magee, 821 F.2d 234 (5th Cir. 1987)

United States v. Dworken, 855 F.2d 12 (1st Cir. 1988)

If a codefendant’s plea agreement is introduced, it should be redacted to

delete information harmful to the defendant and without probative value

as to the codefendant’s veracity. Such information includes statements indicating that the prosecutor has additional information verifying the testimony of the codefendant or that the prosecutor personally believes the

witness’s testimony.

United States v. McLain, 823 F.2d 1457 (11th Cir. 1987)

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)
Part VIII. Verdict 159

Part VIII

Verdict

A. Special Interrogatories in Criminal Cases

It is generally considered improper to propound special interrogatories to a

jury in a criminal prosecution. A jury has the right to render a general verdict without being compelled to return a number of subsidiary findings to

support that verdict.

United States v. Bosch, 505 F.2d 78 (5th Cir. 1974)

United States v. Wilson, 629 F.2d 439 (6th Cir. 1980)

United States v. Southard, 700 F.2d 1 (1st Cir. 1983)

But see United States v. North, 910 F.2d 843 (D.C. Cir. 1990)

Although special verdicts are looked on with disfavor in criminal cases, there

is no per se rule against them.

United States v. Desmond, 670 F.2d 414 (3d Cir. 1982)

United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989)

When a jury that has been instructed on a lesser-included offense returns a

general guilty verdict, the verdict is fatally ambiguous. This ambiguity cannot be cured by the use of special interrogatories.

United States v. Barrett, 870 F.2d 953 (3d Cir. 1989)

Special interrogatories are properly used in conspiracy cases to establish

facts that must be used in sentencing. The necessary facts may be obtained

by submitting interrogatories to the jury after it has returned a guilty verdict.

United States v. Buishas, 791 F.2d 1310 (7th Cir. 1986)

United States v. Jordan, 870 F.2d 1310 (7th Cir. 1989)

If a conspiracy count charges defendants with conspiring to distribute two

or more different drugs for which Congress has prescribed different ranges

of sentences, the trial court should, by the use of a special interrogatory or

otherwise, require the jury to return a verdict that will indicate clearly on its

face which of the charged drugs defendants were found to have conspired

to distribute.

United States v. Dennis, 786 F.2d 1029 (11th Cir. 1986)

But see United States v. Edwards, 105 F.3d 1179 (7th Cir. 1997)

Interrogatories may be used if the information sought is relevant to the

sentence.

United States v. Pforzheimer, 826 F.2d 200 (2d Cir. 1987)
160 Manual on Recurring Problems in Criminal Trials, fifth edition

If the indictment alleges several distinct acts, any one of which might provide a basis for a guilty verdict, the trial court must specifically instruct the

jury that it must agree unanimously on the specific illegal act and the specific legal theories supporting the verdict.

United States v. Beros, 833 F.2d 455 (3d Cir. 1987), disapproved on other grounds

by Schad v. Arizona, 501 U.S. 624 (1991)

B. Directing Verdict by Court

The Sixth Amendment guarantees a defendant the opportunity to have a

jury determine the defendant’s guilt or innocence. The court may not direct a verdict of guilty in a jury trial no matter how conclusive the evidence

is against the defendant.

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977)

Sullivan v. Louisiana, 508 U.S. 275 (1993)

United States v. Sheldon, 544 F.2d 213 (5th Cir. 1976)

United States v. Mentz, 840 F.2d 315 (6th Cir. 1988)

The court may not strike testimony and direct the jury to disregard it on

the ground that it is unbelievable.

United States v. Thompson, 615 F.2d 329 (5th Cir. 1980)

The court may not instruct the jury that a fact has been established, no

matter how clear the evidence.

United States v. Mentz, 840 F.2d 315 (6th Cir. 1988)

A dismissal or directed verdict may be ordered at the conclusion of the

prosecutor’s opening statement only when the prosecution has made a clear

and deliberate concession that necessarily prevents a conviction, and then

only after the prosecution has been given the opportunity to fully correct

errors or omissions.

United States v. Donsky, 825 F.2d 746 (3d Cir. 1987)

C. Motion for Judgment of Acquittal

1. Criteria to be applied by court in ruling on motion for

judgment of acquittal

A motion for acquittal must be granted when the evidence, viewed in the

light most favorable to the government, is such that a reasonable juror must

have a reasonable doubt as to the existence of any essential element of the

crime charged.
Part VIII. Verdict 161

United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977)

United States v. Foster, 783 F.2d 1087 (D.C. Cir. 1986)

An accused is entitled to a judgment of acquittal only when there is no

evidence on which reasonable minds might fairly base a finding of guilt

beyond a reasonable doubt.

United States v. Whetzel, 589 F.2d 707 (D.C. Cir. 1978)

Upon a motion for judgment of acquittal, the trial court is not to weigh

evidence or assess credibility of witnesses, but is to submit the case to the

jury if evidence and inferences therefrom most favorable to the prosecution would warrant a jury finding that the defendant was guilty beyond a

reasonable doubt.

United States v. Malatesta, 590 F.2d 1379 (5th Cir. 1979)

2. Reservation of ruling on motion for judgment of

acquittal

Under Federal Rule of Criminal Procedure 29(b), a court may reserve its

ruling on a motion for judgment of acquittal made at the close of the

government’s evidence, or at any other stage of the trial. If a court reserves

decision, it must rule on the basis of the evidence at the time the decision

was reserved.

D. Mistrial

Although a court has the power to declare a mistrial, that power must be

exercised with extreme caution in a criminal prosecution. If a mistrial is

improvidently declared, the bar of double jeopardy may prevent the retrial

of the defendant.

1. Court has power to declare mistrial

It is within the discretion of the trial court to declare a mistrial even over

the defendant’s objection if the court determines that facts and circumstances within or without the courtroom preclude the possibility of a fair

trial either for the defendant or for the government.

United States v. Riebold, 557 F.2d 697 (10th Cir. 1977)

A mistrial is not to be declared unless (1) there is “manifest necessity” for

termination of the proceedings, or (2) “the ends of public justice” would

otherwise be defeated.
162 Manual on Recurring Problems in Criminal Trials, fifth edition

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

United States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988)

A Batson violation cannot create the manifest necessity for the declaration

of a mistrial.

United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995)

2. Mistrial to be avoided if possible

The power of the courts to declare a mistrial must be exercised with the

greatest caution, under urgent circumstances, and for very plain and obvious causes.

Arizona v. Washington, 434 U.S. 497 (1978)

Declaration of a mistrial is to be avoided if possible.

United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974)

The trial judge should not foreclose the defendant’s right to take his or her

case to the original jury until a scrupulous exercise of judicial discretion

leads to the conclusion that the ends of public justice would not be served

by a continuation of the proceedings.

United States v. Jorn, 400 U.S. 470 (1971)

Before granting a mistrial the court should always consider whether the

giving of a curative instruction or some less drastic alternative is appropriate.

United States v. Martin, 756 F.2d 323 (4th Cir. 1985)

United States v. McClellan, 868 F.2d 210 (7th Cir. 1989)

3. Alternative courses of action must be considered

Before declaring a mistrial, a trial judge must consider all the procedural

alternatives to a mistrial, and, after finding none of them to be adequate,

make a finding of manifest necessity for the declaration of a mistrial.

Arizona v. Washington, 434 U.S. 497 (1978)

Federal Rule of Criminal Procedure 26.3 requires a court to provide an opportunity for all parties to comment on the propriety of an order of mistrial, including whether each party consents or objects to a mistrial, and to

suggest other alternatives.

4. Declaring mistrial because of deadlocked jury

If the jury reports that it is deadlocked, the trial judge must determine

whether there is a probability that the jury can reach a verdict within a
Part VIII. Verdict 163

reasonable time. The judge should question the jury, either individually or

through its foreperson, on the possibility that its deadlock could be overcome by further deliberations.

United States v. See, 505 F.2d 845 (9th Cir. 1974)

United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)

Merely questioning the jury foreperson may not be sufficient, but questioning the foreperson individually and the jury either individually or as a

group is satisfactory.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

The Sixth Circuit has suggested that the trial judge should ask not only the

foreperson but also the individual jurors whether they feel that there is any

prospect of the jury reaching a verdict.

United States v. Larry, 536 F.2d 1149 (6th Cir. 1976)

Before declaring a mistrial, the judge should inquire whether the jury has

reached a partial verdict as to any defendant as to any count.

United States v. MacQueen, 596 F.2d 76 (2d Cir. 1979)

Whether the court has properly exercised its discretion to declare a mistrial

because of a deadlocked jury depends on the following factors: (1) a timely

objection by the defendant; (2) the jurors’ collective opinion that they cannot agree; (3) the length of the deliberations; (4) the length of the trial; (5)

the complexity of the issues presented to the jury; (6) any prior communications that the judge has had with the jury; (7) the effects of possible exhaustion; and (8) the impact that the coercion of further deliberations might

have on the jury.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

In re Ford, 987 F.2d 334 (6th Cir. 1992)

United States v. Carraway, 108 F.3d 745 (7th Cir. 1997)

See supra at 34–35.

5. Improvident declaration of mistrial

Improvident declaration of a mistrial may bar retrial or may compel the

release on double jeopardy grounds of a defendant who is prosecuted a

second time.

Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978)

United States v. Pierce, 593 F.2d 415 (1st Cir. 1979)

Harris v. Young, 607 F.2d 1081 (4th Cir. 1979)

Grandberry v. Bonner, 653 F.2d 1010 (5th Cir. 1981)

United States v. Bridewell, 664 F.2d 1050 (6th Cir. 1981)

United States v. Sloan, 36 F.3d 386 (4th Cir. 1994)
164 Manual on Recurring Problems in Criminal Trials, fifth edition

The Double Jeopardy Clause does not ordinarily bar the retrial of defendants who themselves ask the court to declare a mistrial.

Oregon v. Kennedy, 456 U.S. 667 (1982)

United States v. Larouche Campaign, 866 F.2d 512 (1st Cir. 1989)

United States v. Weeks, 870 F.2d 267 (5th Cir. 1989)

United States v. Johnson, 55 F.3d 976 (4th Cir. 1995)

A motion for a mistrial made by the defendant normally serves to remove

any barrier to reprosecution, but such is not the case when the prosecutor

has, through bad faith or overreaching, “goaded” the defendant into requesting a mistrial.

Oregon v. Kennedy, 456 U.S. 667 (1982)

United States v. Roberts, 640 F.2d 225 (9th Cir. 1981)

United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)

United States v. Johnson, 55 F.3d 976 (4th Cir. 1995)

If the defendant’s motion for a mistrial is denied, and a mistrial is later

declared on different grounds, the defendant is not deemed to have consented to the mistrial.

Lovinger v. Circuit Court of 19th Judicial Circuit, 845 F.2d 739 (7th Cir. 1988)

United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)
Table of Cases 165

Table of Cases

A

Abdullah v. Groose 3

Adail v. Wyrick 88

Adams v. Carroll 1, 3

Alderman v. United States 41

Allen v. Pennsylvania Eng’g Corp. 103

AMF, Inc. v. Jewitt 54

Amos v. United States 36

Anderson v. Maggio 87

Anderson v. United States 42, 75

Andretta v. United States 69

Anglin v. Johnston 72

Arizona v. Washington 162

Arizona v. Youngblood 46

Armco, Inc. v. United States EPA 49

Armstrong v. Toler 25

Arnold v. McCarthy 34, 162, 163

B

Badger v. Cardwell 73

Baker v. Eisenstadt 69

Balla v. Idaho State Bd. of Corrections 54

Bank One of Cleveland, N.A. v. Abbe 118

Barber v. Page 108

Barkauskas v. Lane 46, 47

Barker v. Morris 110, 111

Barnes v. Thompson 49

Batson v. Kentucky 12, 13, 15, 17

Bellis v. United States 120

Bibbs v. Wyrick 74

Bionic Auto Parts & Sales v. Fahner 121

Birl v. Estelle 6

Blackwell v. Brewer 112

Blanton v. City of North Las Vegas 60

Bloom v. Illinois 59, 60

Bollenbach v. United States 25

Bourjaily v. United States

76, 77, 81, 83, 111

Brady v. Maryland 46

Branch v. Estelle 86

Branscomb v. Norris 4

Brasfield v. United States 36

Braswell v. United States 120, 121

Brown v. United States 123

Bruno v. Greenlee 55, 72

Bruton v. United States 154

Burnett v. Collins 124

C

California v. Green 108

Caminetti v. United States 144

Campbell v. Louisiana 14

Campbell v. United States 42, 43

Canterbury Belts, Ltd. v. Lane Walker

Rudkin, Ltd. 53

Carbo v. United States 18, 80

Carey v. Minnesota 8

Chapman v. United States 4

Cheff v. Schnackenberg 59

Christian v. Rhode 108

Ciccone v. Secretary of Dept. of Health &

Human Services 118

Ciraolo v. Madigan 63, 64

Clancy v. United States 44

Clark v. Scott 113

Clemente v. United States 58

Clemmons v. Sowders 23, 30

Cliett v. Hammonds 58

Codispoti v. Pennsylvania 59, 63

Commodity Futures Trading Comm’n v.

Premex Inc. 55

Cooke v. United States 56, 63, 64

Coy v. Iowa 112

Crane v. Kentucky 116

Crosby v. United States 111

Cruz v. New York 155

Cunningham v. Perini 146

D

Daschbach v. United States 70

Daubert v. Merrell Dow Pharm., Inc. 89,

100, 101

Davidson v. Riley 3

Davis v. Alaska 131, 132

Davis v. United States 100, 102

De Luna v. United States 148

Delaware v. Fensterer 131

Delaware v. Van Arsdall 132

Devose v. Norris 17

Dickerson v. United States 114

Doby v. South Carolina Dept. of Corrections 116

Doe v. United States 118, 125

Donovan v. Burlington N. 55

Dorsey v. Parke 131

Douglas v. Alabama 107

Douglass v. First Nat’l Realty Corp.

51, 53, 60

Dowling v. United States 107

Downey v. Clauder 57, 62
166 Manual on Recurring Problems in Criminal Trials, fifth edition

Duckett v. Godinez 29, 138

Dunkerley v. Hogan 163

Dupont v. Hall 29

Dutton v. Evans 110

E

Egger v. United States 140

Elem v. Purkett 17

Ellis v. United States 122

F

F.D.I.C. v. Sovereign State Capital, Inc.

119, 127

Faretta v. California 1, 2

Fillipon v. Albion Vein Slate Co. 25

Fisher v. United States 120

Food Lion v. United Food & Commercial

Workers Int’ 55

Fountain v. United States 125

Frank v. Blackburn 88

Frank v. United States 59, 61

Fritz v. Spalding 4

G

G. & C. Merriam Co. v. Webster Dictionary

Co. 53, 54

Geders v. United States 136

Georgia v. McCollum 12

Giglio v. United States 47

Gilbert v. California 123

Gilmore v. Armontrout 74

Glenn v. Dallman 110

Godinez v. Moran 4

Goldberg v. United States 43, 44

Gordon v. United States 63, 66

Government of Canal Zone v. Scott 31

Government of the Virgin Islands v.

Edinborough 135

Government of the Virgin Islands v.

Romain 36

Government of Virgin Islands v. Felix 18

Government of Virgin Islands v. Forte 13

Government of Virgin Islands v. Petersen

87, 88

Grandberry v. Bonner 163

Gray v. Maryland 154, 156

Greenwood Util. Comm’n v. Mississippi

Power Co. 103

Gregory v. United States 133, 135

Griffin v. California 143

Grosso v. United States 121

H

Haith v. United States 139

Hallinan v. United States 67

Hameed v. Mann 29

Hamilton v. Groose 3

Harris v. City of Philadelphia 54

Harris v. United States 56, 63, 70

Harris v. Young 163

Harrison v. Ryan 17

Haugh v. Jones & Laughlin Steel Corp. 39

Hawk v. Cardoza 62, 65

Henderson v. Frank 2

Hendricks v. Zenon 3

Hernandez v. New York 16, 18

Hicks ex rel. Feiock v. Feiock 51

Hodges v. Rose 155

Hoffman ex rel. NLRB v. Beer Drivers &

Salesmen’s Local 888 53

Hoffman v. United States 127

Holland v. Illinois 13

Hollingsworth v. Burton 17

Holloway v. Arkansas 124

Hoover v. Thompson 117

Hopkinson v. Shillinger 111

Huddleston v. United States 107

Hurd v. Pittsburg State Univ. 17

I

Illinois v. Allen 72, 73

In re Arthur Treacher’s Franchise Litig. 54

In re Baird 120

In re Baltimore Sun Co. 20

In re Battaglia 71

In re Bongiorno 71

In re Boyden 69

In re Brogna 127

In re Brummitt 70

In re Bushkin Assocs., Inc. 145

In re Campbell 120

In re Corrugated Container Antitrust Litig.

118, 126

In re Dellinger 59, 64, 65

In re Ford 163

In re Garmon 55, 72

In re Gilboe 120, 129

In re Globe Newspaper Co. 20

In re Grand Jury Empanelled Feb. 14, 1978

(Markowitz) 127

In re Grand Jury Investigation 53, 69, 72

In re Grand Jury Proceeding (Doe) 119

In re Grand Jury Proceeding 82-2 (Nigro)

120
Table of Cases 167

In re Grand Jury Proceedings

68, 70, 71, 72, 121, 127, 129

In re Grand Jury Proceedings (Buckley)

119

In re Grand Jury Proceedings (Burns) 119

In re Grand Jury Proceedings (Doe) 119

In re Grand Jury Proceedings (Mallory)

119

In re Grand Jury Proceedings (Postal) 120

In re Grand Jury Proceedings Harrisburg

Grand Jury 57, 58

In re Grand Jury Proceedings of Dec. 1989

119

In re Grand Jury Subpoena (Spano) 121

In re Grand Jury Subpoena Duces Tecum

120

In re Grand Jury Subpoena Duces Tecum

Served upon 121

In re Grand Jury Subpoena(Spano) 122

In re Gustafson 64, 66

In re Impounded 120

In re Irving 52

In re Joint E. & S. Dist. Asbestos Litig. 102

In re Kave 55

In re Kenny 121

In re Kilgo 54, 58

In re Kirk 62

In re Kitchen 53, 71

In re Liberatore 72

In re Maguire 85

In re Manufacturers Trading Corp. 67

In re Master Key Litigation 126

In re Morganroth 122

In re Paoli R.R. Yard PCB Litig. 103

In re Parrish 56

In re Pilsbury 61, 63, 65

In re Rosahn 53, 124

In re Sadin 70

In re Scott 69

In re Sealed Case 120

In re Shriner 141

In re Storer Communications, Inc. 48

In re United States 136

In re Walters 53

In re Weeks 58, 59

In re Weiss 71

In re Williams 61

International Union, United Mine Workers

v. Bagwel 54, 60

Isaacs v. United States 126

Israel v. Odom 87

J

J.E.B. v. Alabama ex rel. T.B. 12

Jackson v. Denno 114

Johnson v. Love 17

Johnson v. McCaughtry 13

Johnson v. Mississippi 63

Johnson v. Scully 138

Jurek v. Estelle 115

K

Kines v. Butterworth 133, 135

King v. United States 37, 38

Klein v. Smith 126

Kumho Tire Co. v. Carmichael 89, 100

Kyles v. Whitley 46, 49

L

Latrobe Steel Co. v. United Steelworkers of

America 53

Lawson v. Murray 125

Lee v. Marshall 29

Lent v. Wells 144

Leon v. Wainwright 114

Lewis v. United States 59

Lilly v. Virginia 110

Llach v. United States 138

Lockett v. Blackburn 134

Lopez v. Thompson 2

Love v. Johnson 50

Lovinger v. Circuit Court of 19th Judicial

Circuit 164

Luce v. United States 96, 133, 135

M

MacInnis v. United States 66

Mack v. Peters 152

MacKay v. United States 129

Maggio v. Zeitz 63

Mancusi v. Stubbs 108

Mann v. Hendrien 58

Manson v. Brathwaite 85, 87

Martinez v. Court of Appeal of California

2

Maryland v. Craig 112

Mastrian v. McManus 19

Mayberry v. Pennsylvania 5

McCleskey v. Kemp 147

McComb v. Jacksonville Paper Co. 53

McDonald’s Corp. v. Victory Investments

55

McFarland v. Smith 147
168 Manual on Recurring Problems in Criminal Trials, fifth edition

McKaskle v. Wiggins 4, 5

McKee v. Harris 7

McLaughlin v. Vinzant 156

McMahon v. Fulcomer 8

Means v. Wilson 109

Mendoza v. Miller 49

Meyer v. Sargent 9

Miles v. Burris 109

Miller v. Fenton 115

Miranda v. Arizona 114

Mitchell v. United States 119, 129

Montana v. Egelhoff 116

Moore v. Calderon 4

Moore v. United States 16

Moore v. Wyrick 145

Moran v. Burbine 115

Muniz v. Hoffman 58, 59, 60

Murray v. Superintendent, Kentucky State

Penitentiary 98

N

N.A. Sales Co. v. Chapman Indus. Corp. 54

National Life Ins. Co. v. Hartford Accident

& Indem. Co. 118, 128

Nat’l Maritime Union v. Aquaslide ‘N’ Dive

Corp. 59

Neal v. Texas 7

Neil v. Biggers 85

Nelson v. O’Neil 108, 155

Nerisen v. Solem 8

Neron v. Tierney 27

Nevels v. Parratt 112

Nick v. United States 136

NLRB v. Teamsters, Chauffeurs, Helpers &

Taxicab Drivers, Local 327 54

Norman Bridge Drug Co. v. Banner 55

O

Ohio v. Reiner 126

Ohio v. Roberts 107, 108, 110, 111

Ohler v. United States 96

Olden v. Kentucky 131

Oregon v. Elstad 115

Oregon v. Kennedy 164

Owen v. Duckworth 27

P

Pabst Brewing Co. v. Brewery Workers

Local Union 51

Palermo v. United States 42, 43, 44

Parker v. Estelle 38

Parker v. Randolph 155

Parmelee Transp. Co. v. Keeshin 63

Patterson v. United States 1

Patty v. Bordenkircher 143

Paul F. Newton & Co. v. Texas Commerce

Bank 84

Pennsylvania v. Local 542, Int’l Union of

Operatin 65, 66

Pennsylvania v. Muniz 118, 124

Pennsylvania v. Ritchie 47, 48, 132

Perry v. Leeke 137

Peters v. Gunn 2

Piemonte v. United States 119

Pietsch v. President of United States 64

Pillsbury Co. v. Conboy 118, 126

Pointer v. United States 18

Portuando v. Agard 143

Powell v. Spalding 19

Powers v. Ohio 14

Purkett v. Elem 15, 16, 17

Q

Quercia v. United States 147

Quinter v. Volkswagen of America 55

R

Raper v. Mintzes 144

Remmer v. United States 26

Reynolds v. City of Little Rock 13

Reynolds v. United States 108

Rhoden v. Rowland 29

Richardson v. Lucas 8

Richardson v. Marsh 25, 154, 155, 156

Richmond Black Police Officers Ass’n v.

Richmond 52, 58, 60

Riley v. Deeds 31, 139

Robles v. United States 62

Rogers Transp., Inc. v. Stern 122

Rogers v. United States 23

Rojas v. United States 59

Runnels v. Hess 144

Rushen v. Spain 27

Ryan v. Commissioner 127

S

Salemme v. Ristaino 133, 135

Sanchez v. Mondragon 8

Sanchez v. United States 12

Sapienza v. Vincent 4

Schad v. Arizona 160

Scott v. Fort Bend County 135

Scurr v. Moore 73

Shapiro v. United States 121
Table of Cases 169

Shields v. United States 23

Shillitani v. United States 52, 68

Simkin v. United States 56

Simmons v. Beyer 15

Sincox v. United States 35

Sizzler Family Steak Houses v. Western

Sizzlin Steak House, Inc. 55

Smith v. Cupp 37

Smith v. De Robertis 20, 156

Smith v. Fairman 109, 144

Smith v. Phillips 26

Smith v. Richert 121

Smith v. Secretary of N.M. Dept. of

Corrections 46, 49

Solomon v. Kemp 129

Soobzokov v. CBS, Inc. 54

Spallone v. United States 54

Stephens v. South Atlantic Canners, Inc. 28

Stockton v. Virginia 27

Sullivan v. Alabama 115

Sullivan v. Louisiana 160

T

Taylor v. Hayes 65

Taylor v. United States 111

Tennessee v. Street 155

Texas v. Cobb 115

Thomas v. Wainwright 8

Tolbert v. Page 15, 31

Tome v. United States 105

Toolate v. Borg 155

Truitt v. Fair 1

Turner v. Marshall 15, 31

TWM Mfg. Co. v. Dura Corp. 58

U

United States ex rel. Bleimehl v. Cannon

88

United States ex rel. Clark v. Fike 86

United States ex rel. Robson v. Malone 64

United States ex rel. Thom v. Jenkins 56

United States v. A & S Council Oil Co. 132

United States v. Abascal 64

United States v. Acevedo 22

United States v. Acker 21

United States v. Acosta 37

United States v. Adams 28, 44

United States v. Adamson 138

United States v. Agee 10

United States v. Aguilar 159

United States v. Agurs 46, 49

United States v. Aims Back 94

United States v. Ajmal 30

United States v. Alcantar 16

United States v. Alderete 140

United States v. Alderson 120

United States v. Alessandrello 113

United States v. Alexande 97

United States v. Alexander 21, 90, 99

United States v. Algie 40

United States v. Allen 42

United States v. Allende 148

United States v. Allshouse 128

United States v. Almonte 30

United States v. Alpern 104

United States v. Alter 70

United States v. Alzate 46

United States v. Amaya 36

United States v. Amerson 145

United States v. Ammar 80

United States v. Anderson

5, 10, 53, 70, 79, 162

United States v. Angiulo 28

United States v. Annigoni 16

United States v. Antar 20, 38

United States v. Anthony 29

United States v. Apfelbaum 119

United States v. Apodaca 74

United States v. Araujo 21

United States v. Archbold-Newball 155

United States v. Archibald 86

United States v. Arciniega 19

United States v. Ardle 66

United States v. Argentine 139

United States v. Armijo 21

United States v. Arrington 8

United States v. Artus 24

United States v. Asay 52

United States v. Askew 55

United States v. Ayer 51

United States v. Baccari 22

United States v. Badalamenti 78

United States v. Baez 158

United States v. Bagley 46, 47, 87, 97

United States v. Bagnariol 26, 45

United States v. Bailleaux 47

United States v. Baker 61, 146

United States v. Baltrunas 16

United States v. Bari 152

United States v. Barnes 97

United States v. Baron 138

United States v. Barrera 161

United States v. Barrett 85, 159

United States v. Bastanipour 45

United States v. Bastone 90

United States v. Battle 14, 17, 74

United States v. Bay 104
170 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Becker 152

United States v. Beckett 98

United States v. Bednar 143

United States v. Beechum 122, 123

United States v. Behrens 82

United States v. Bell 2

United States v. Benavides 113

United States v. Bencs 48

United States v. Benedict 37

United States v. Benfield 112

United States v. Bengivenga 155

United States v. Bennett 104

United States v. Benton 95

United States v. Berardelli 59

United States v. Bergodere 14

United States v. Bernard 45

United States v. Beros 160

United States v. Berry 33, 93

United States v. Bertoli 23, 33, 93

United States v. Bess 145, 146

United States v. Betancourt 94

United States v. Biggins 91

United States v. Binder 30

United States v. Birges 30

United States v. Bishop 17

United States v. Bittner 134, 135

United States v. Bizzard 136

United States v. Blue Horse 117

United States v. Bodwell 128

United States v. Bohr 28

United States v. Bonds 100, 101

United States v. Bondurant 117

United States v. Borello 131

United States v. Bosch 159

United States v. Bourne 44

United States v. Boyd 24, 41, 47, 75

United States v. Boylan 27

United States v. Boyles 108, 112

United States v. Brannon 65, 68, 70

United States v. Brazel 40

United States v. Breinig 150

United States v. Bridewell 163

United States v. Brien 89

United States v. Bright 124

United States v. Briley 85

United States v. Brock 3, 5, 7

United States v. Brookins 80

United States v. Brooks 16, 35, 36

United States v. Brown

17, 21, 22, 28, 32, 33, 86, 92, 99, 124,

134, 144, 149, 154

United States v. Brumel-Alvarez 41

United States v. Brumley 141

United States v. Brummitt 62

United States v. Bryan 49

United States v. Bryant 40

United States v. Bucci 13

United States v. Buege 148

United States v. Buishas 159

United States v. Burgos 34

United States v. Burke 89

United States v. Burkhead 96

United States v. Burton 20

United States v. Bush 30

United States v. Butcher 90

United States v. Butenko 41

United States v. Butler 27, 28

United States v. Byrski 163, 164

United States v. Cadet 47

United States v. Cagnina 40

United States v. Calarco 75

United States v. Calbas 39

United States v. Calhoun 136

United States v. Camacho 113

United States v. Cambindo Valencia 77

United States v. Campagnuolo 40, 48

United States v. Campbell

2, 4, 5, 6, 39, 104, 124

United States v. Candoli 109, 111

United States v. Canoy 17

United States v. Capers 40

United States v. Caporale 27

United States v. Caputo 84

United States v. Carraway 163

United States v. Carrillo-Figueroa 88

United States v. Carroll 53, 146

United States v. Carter 19

United States v. Cash 4

United States v. Cassiere 30

United States v. Castillo 129, 144, 145

United States v. Castro 98, 151

United States v. Cavender 99

United States v. Cerone 83

United States v. Chalan 13, 14

United States v. Chandler 68

United States v. Chaney 1, 81

United States v. Chapman 110

United States v. Cheek 28

United States v. Chiantese 26

United States v. Chiarizio 92

United States v. Chigbo 35

United States v. Chin 106

United States v. Chischilly 101, 102

United States v. Chorney 21

United States v. Christensen 11

United States v. Ciampaglia 82

United States v. Clark 83, 117

United States v. Clarke 107
Table of Cases 171

United States v. Clemons 14, 15, 16

United States v. Cobb 151, 152

United States v. Cochran 11

United States v. Coe 78

United States v. Cole 94

United States v. Collins 89

United States v. Colyer 126

United States v. Combs 25

United States v. Conroy 42

United States v. Consolidated Packaging

Corp. 44

United States v. Continental Group, Inc.

83

United States v. Cook 96, 99, 133, 135

United States v. Copeland 25

United States v. Corona 148

United States v. Corporan-Cuevas 7

United States v. Cortijo-Diaz 46

United States v. Cosentino 149

United States v. Cotnam 148

United States v. Cox 33

United States v. Crawford 97, 98, 128

United States v. Cresta 13

United States v. Crockett 20

United States v. Cruz 131, 149

United States v. Cutler 58, 62

United States v. Cyphers 6

United States v. Daccarett 100

United States v. Dakins 37

United States v. Daly 18

United States v. Damiano 119

United States v. Darrell 90

United States v. David 10

United States v. Davis

12, 16, 83, 86, 101, 102, 112, 113, 142

United States v. Day 95

United States v. De Hernandez 32

United States v. De John 137

United States v. De la Cruz-Paulino 33

United States v. De La Torre 24

United States v. Delaney 27

United States v. Delaplane 124

United States v. DeLeon 28, 91, 93

United States v. Delgado 31, 44

United States v. DeLucca 157

United States v. Demchak 125

United States v. Dennis 13, 14, 148, 159

United States v. Desmond 159

United States v. DeTemple 7

United States v. Di Francesco 131

United States v. Di Giovanni 125

United States v. Di Girlomo 62

United States v. Di Lapi 37

United States v. Di Rodio 81

United States v. Dial 78

United States v. Diaz-Munoz 48

United States v. Dickey 151

United States v. Diecidue 125

United States v. Diggs 23, 36

United States v. Dingle 44, 49

United States v. Dionisio 123

United States v. Dischner 21

United States v. Dixon 52, 97

United States v. Dobbs 138

United States v. Dobynes 13

United States v. Dodier 116

United States v. Doe 26, 118, 122, 125

United States v. Doherty 151

United States v. Domina 86, 124

United States v. Dominguez 21

United States v. Donato 43

United States v. Donsky 160

United States v. Dooley 125

United States v. Dorn 32, 93

United States v. Dorr 147

United States v. Dorsey 89, 101

United States v. Dougherty 5

United States v. Doulin 77

United States v. Doyle 151

United States v. Drews 130

United States v. Drougas 151

United States v. Duarte-Higareda 11

United States v. Dujanovic 5

United States v. Duke 47

United States v. Dupuy 46

United States v. Durham 147

United States v. Dutkel 27

United States v. Dworken 158

United States v. Dwyer 95

United States v. Echeverry 45

United States v. Edelman 130

United States v. Edgerton 127

United States v. Edmond 20

United States v. Edwards 1, 28, 130, 159

United States v. Ehrlichman 152, 153

United States v. Eldred 37

United States v. Ellis 89

United States v. Ellison 137

United States v. Emanuele 86

United States v. Erwin 13

United States v. Escobar 49

United States v. Escotto 33

United States v. Espinoza-Seanez 156

United States v. Estrada 26

United States v. Eubanks 78

United States v. Evans 22

United States v. Falcon 115

United States v. Famulari 88
172 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Farnham 135, 136

United States v. Farnsworth 90

United States v. Fay 96

United States v. Fazzini 7

United States v. Feinberg 30

United States v. Fera 117

United States v. Ferreira-Alameda 11

United States v. Figueroa 95, 96

United States v. Figurski 134

United States v. Finnigan 43

United States v. Fiorilla 36

United States v. Fisher 11

United States v. Fitts 82, 83

United States v. Flaherty 23

United States v. Fleishman 145

United States v. Flores 156

United States v. Flores-Rivera 150

United States v. Fogg 145

United States v. Ford 151, 152

United States v. Fortin 122, 129

United States v. Foster 32, 161

United States v. Fountain 98

United States v. Freedson 35

United States v. Freeman 29

United States v. Freie 85

United States v. Fricke 127

United States v. Friedland 39

United States v. Fryar 25

United States v. Gaertner 98

United States v. Gaines 143

United States v. Gaitan-Acevedo 94

United States v. Gallagher 145

United States v. Gallop 6, 9

United States v. Gambino 21

United States v. Gantt 43, 45, 82

United States v. Garcia 117

United States v. Garrett 7, 10

United States v. Gartmon 27

United States v. Gary 125

United States v. Garza 148

United States v. Gaston 48, 49

United States v. Gatto 146

United States v. Gay 117, 152

United States v. Geaney 75

United States v. Gecas 120

United States v. Gerry 91

United States v. Gibbons 157

United States v. Gidley 85

United States v. Gigax 28

United States v. Gil 83

United States v. Gilliam 150

United States v. Gipson 12

United States v. Giraldo 69

United States v. Givens 88

United States v. Goins 155

United States v. Goldberg 3, 7, 44

United States v. Gomez 34, 110

United States v. Goodman 79

United States v. Goodwin 128

United States v. Gordon 17, 114

United States v. Grandmont 98

United States v. Grant 31

United States v. Grassi 94

United States v. Green 79, 89, 122, 123

United States v. Greenfield 91

United States v. Griffin 157, 158

United States v. Guadian-Salazar 109

United States v. Gunter 141

United States v. Gutman 39

United States v. Hadley 85

United States v. Haimowitz 132

United States v. Haldeman 19

United States v. Hall 23, 67, 89, 101, 132

United States v. Halliburton 29

United States v. Hamdan 60

United States v. Hamilton 81, 85

United States v. Handly 157

United States v. Hanigan 20

United States v. Hankey 101

United States v. Hanna 40, 47, 49

United States v. Hans 94

United States v. Hansen 157

United States v. Harber 33

United States v. Hardin 148

United States v. Harris 1, 18, 45, 78

United States v. Harrison 45, 116, 120

United States v. Harvey 86

United States v. Hassell 92

United States v. Hatchett 119, 128

United States v. Hay 23

United States v. Hayes 20, 153, 156

United States v. Haynes 37, 150

United States v. Hedman 130

United States v. Heinemann 80

United States v. Helbling 142

United States v. Hellman 137

United States v. Henao 134

United States v. Henderson 90, 130

United States v. Hendrix 26

United States v. Hernandez

2, 3, 22, 30, 31, 82, 123, 147

United States v. Herndon 28

United States v. Hershenow 142

United States v. Hewes 82, 151

United States v. Hickman 138

United States v. Higginbotham 144

United States v. Hilburn 52

United States v. Hill 6, 14
Table of Cases 173

United States v. Hillard 22, 27

United States v. Hilton 131

United States v. Hinton 45

United States v. Hockridge 39

United States v. Holder 78

United States v. Hollins 124

United States v. Holmes

30, 42, 48, 62, 99

United States v. Holton 92, 93

United States v. Horsley 14, 17

United States v. Houlihan 22, 45

United States v. Howard 80

United States v. Hubbell 118, 122

United States v. Hudson 88, 154

United States v. Hughes 15

United States v. Hughey 51, 69

United States v. Huntress 22, 27, 146

United States v. Ianniello 28, 38, 39

United States v. Inadi

83, 84, 107, 108, 109, 111

United States v. Iron Shell 110

United States v. Izydore 8

United States v. Jackman 89

United States v. Jackson 78, 135, 136

United States v. James 82, 122

United States v. Jardan 153

United States v. Jobe 32

United States v. Joe 16

United States v. John 92

United States v. Johnson

13, 16, 43, 105, 126, 164

United States v. Jones

21, 48, 77, 91, 105, 131

United States v. Jordan 145, 159

United States v. Jorn 162

United States v. Joudis 120

United States v. Juarez 147

United States v. Judon 43, 44

United States v. Kaminski 22

United States v. Kaplan 48, 125

United States v. Kasto 94

United States v. Kaufman 151, 152

United States v. Kavanagh 89

United States v. Keller 88

United States v. Kelley 6, 156

United States v. Kelly 41, 47

United States v. Kelm 6

United States v. Kendall 77

United States v. Kendricks 77

United States v. Kepreos 37, 38

United States v. Keskey 31, 147, 158

United States v. Kessi 145

United States v. Key 86

United States v. Kimbrough 87

United States v. Kime 89

United States v. Kimmel 1, 2

United States v. King 31, 104

United States v. Kizer 73

United States v. Klayer 98

United States v. Kneeland 1, 2, 6

United States v. Knight 35

United States v. Knowles 45, 153

United States v. Koska 32, 33

United States v. Krout 150

United States v. Kuh 119

United States v. Kunzman 17

United States v. Kupau 25, 29, 33

United States v. La Pierre 89

United States v. La Riche 125

United States v. Lamb 104

United States v. Lamont 42

United States v. Lampkins 16

United States v. Lampson 117

United States v. Lane 11, 91

United States v. Larouche Campaign 164

United States v. Larry 163

United States v. Larson 140

United States v. Laurins 138, 141

United States v. Layton 77, 78, 79, 84

United States v. Lebovitz 95

United States v. Leggett 7

United States v. Lehman 121

United States v. Leon 83

United States v. Leone 105, 124

United States v. Leung 48

United States v. Lewis 20, 80, 156

United States v. L’Hoste 25

United States v. Licavoli 122

United States v. Lichenstein 37

United States v. Lieberman 45, 79

United States v. Lightly 119

United States v. Lindell 46

United States v. Linney 59

United States v. Little Boy 158

United States v. Littlefield 27

United States v. Locascio 103

United States v. Lopez 84

United States v. Lord 130, 149

United States v. Lorenzo 17

United States v. Louis 158

United States v. Love 35, 139

United States v. Lowery 65

United States v. Lujan 31

United States v. Luna 117

United States v. Lyles 152

United States v. Lynn 132

United States v. MacCloskey 122

United States v. Maceo 105
174 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Mackey 41

United States v. Macklin 76, 82

United States v. Maclean 30

United States v. MacQueen 163

United States v. Madrid 27

United States v. Magee 79, 158

United States v. Magnano 151

United States v. Malatesta 88, 161

United States v. Malekzadeh 162

United States v. Manzella 91

United States v. Maraj 24

United States v. Marchand 86, 89

United States v. Marin-Cifuentes 154

United States v. Marinari 35, 36

United States v. Marrionneaux 131

United States v. Marshall 66

United States v. Martin

10, 45, 70, 130, 139, 162

United States v. Martin Linen Supply Co.

160

United States v. Martinez 97, 100, 101

United States v. Martinez-Perez 114

United States v. Martino 43

United States v. Martorano 75

United States v. Marx 62

United States v. Mase 45

United States v. Maselli 34

United States v. Mason 41, 44

United States v. Mayes 119

United States v. Mayfield 150

United States v. McCallie 45

United States v. McClellan

23, 81, 82, 162

United States v. McClendon 19

United States v. McClure 148

United States v. McCormick 109

United States v. McDermott 5

United States v. McFarland 22

United States v. McGuire 79

United States v. McIver 25

United States v. McKinley 2

United States v. McKinney 151

United States v. McLain 158

United States v. McLeod 7

United States v. McLernon 116

United States v. McNeal 38

United States v. McNeill 130

United States v. Mealy 130

United States v. Mears 36

United States v. Medico 110

United States v. Medina 94

United States v. Melchor Moreno 127

United States v. Melendez 34

United States v. Mena 44, 148

United States v. Mentz 139, 160

United States v. Merrill 6

United States v. Metz 129

United States v. Mezzanatto 106

United States v. Michaels 47

United States v. Michelson 7

United States v. Milhollan 85

United States v. Miller

42, 82, 105, 122, 137

United States v. Miranda 146

United States v. Miranti 126

United States v. Mirkin 26

United States v. Mitchell 136, 146

United States v. Modica 149

United States v. Moeckly 40

United States v. Molt 40

United States v. Monteleone 70

United States v. Moore 7, 128, 129

United States v. Morales 104, 150

United States v. Morgan 155

United States v. Morris 35, 147

United States v. Morrison 126

United States v. Morrow 78

United States v. Morsley 8

United States v. Moschiano 64

United States v. Moten 21, 38

United States v. Moya-Gomez 2, 5, 106

United States v. Mullen 7, 8

United States v. Munn 73

United States v. Murray 124

United States v. Muthana 37

United States v. Myers 28

United States v. Nace 105

United States v. Napue 133

United States v. Nardi 134

United States v. Nashawaty 91

United States v. Neal 41, 43

United States v. Necoechea 149

United States v. Nell 18

United States v. Nelson 23, 36, 109

United States v. Netter 35

United States v. Newton 46

United States v. Nichols 112, 113

United States v. Niederberger 45

United States v. Noah 36

United States v. Nolan 30

United States v. Norris 5

United States v. North 51, 159

United States v. North American Reporting, Inc. 42

United States v. Nuccio 78

United States v. Nunez 129

United States v. Oakes 96

United States v. O’Conner 49
Table of Cases 175

United States v. O’Connor 94

United States v. O’Henry’s Film Works, Inc.

122

United States v. Olano 6, 22, 25, 27

United States v. Onori 91

United States v. Opager 133

United States v. Oppon 30

United States v. Oriakhi 124

United States v. Orr 84

United States v. Ortiz 97

United States v. Owens 111, 131

United States v. Oxman 130

United States v. Pace 64

United States v. Pachay 12

United States v. Padilla 8, 9

United States v. Palacios 144

United States v. Panza 123

United States v. Paoli 79

United States v. Pappas 113

United States v. Pardo 129

United States v. Partin 105

United States v. Pastor 113

United States v. PATCO 53

United States v. Patrick 59, 69

United States v. Patterson 12, 24

United States v. Paul 101

United States v. Payne 47, 49

United States v. Pearson 146

United States v. Peltier 118

United States v. Pepe 134

United States v. Perdue 114

United States v. Perez 16, 48, 81

United States v. Perry 64

United States v. Persico 80

United States v. Peterson 113

United States v. Petito 52

United States v. Pflaumer 130

United States v. Pforzheimer 159

United States v. Pheaster 104, 124

United States v. Phillips 27, 146

United States v. Piancone 19

United States v. Pierce 7, 8, 89, 163

United States v. Pimental 31

United States v. Pimentel 39

United States v. Pina 4, 61, 67

United States v. Pinkey 6

United States v. Plescia 128

United States v. Pollack 48

United States v. Pollani 7

United States v. Polowichak 30

United States v. Pool 147

United States v. Portac, Inc. 158

United States v. Porter 14

United States v. Portillo 99

United States v. Posada-Rios 27

United States v. Powe 114

United States v. Powell 26, 113

United States v. Powers 52, 53, 66, 68

United States v. Preston 98

United States v. Price 84, 102

United States v. Proctor 1

United States v. Quintero 153

United States v. Rackley 118

United States v. Rahme 80

United States v. Rapp 23, 24, 140

United States v. Rastelli 37, 80

United States v. Ratcliffe 83

United States v. Read 32, 90

United States v. Reavis 152

United States v. Reese 12

United States v. Regilio 77, 84

United States v. Rengifo 33, 93

United States v. Renteria 114

United States v. Reyes 11, 80

United States v. Rice 87, 134

United States v. Rich 134

United States v. Ricks 11, 82

United States v. Riebold 29, 161

United States v. Riley 37, 49

United States v. Rincon 89, 100

United States v. Rippy 40

United States v. Rith 115

United States v. Rivera 106, 142

United States v. Rivera Diaz 83

United States v. Rivera Pedin 42

United States v. Rixner 88

United States v. Roan Eagle 132

United States v. Roark 95

United States v. Roberts

84, 128, 157, 164

United States v. Robertson

10, 11, 86, 124

United States v. Robinson

10, 19, 46, 90, 91, 93, 94, 95, 143

United States v. Roby 11

United States v. Rochan 91

United States v. Rodgers 31

United States v. Rodriguez 10, 128, 129

United States v. Roe 18

United States v. Rogers 86, 113

United States v. Ronder 24

United States v. Rosales 98

United States v. Rose 98

United States v. Ross 20, 37

United States v. Roth 130

United States v. Rubio-Topete 119

United States v. Ruggiero 32

United States v. Rutledge 29
176 Manual on Recurring Problems in Criminal Trials, fifth edition

United States v. Rylander 52

United States v. Saa 145

United States v. Sacco 6, 32

United States v. Saenz 138, 139

United States v. Saimiento-Rozo 77, 84

United States v. Salerno 1, 3, 49, 80, 128

United States v. Salimonu 101

United States v. Sammaripa 162

United States v. Sampol 98

United States v. Sampson 107

United States v. Sangineto-Miranda 14

United States v. Santiago 76

United States v. Sarris 18

United States v. Sasser 44

United States v. Sasson 108

United States v. Satterfield 104

United States v. Sawyer 88

United States v. Scaife 32, 92, 93

United States v. Scalzitti 12

United States v. Scarfo 20

United States v. Scavo 103

United States v. Schiffer 65

United States v. Schwartz 39

United States v. Scisum 24, 27

United States v. Scopo 21

United States v. Scott 48

United States v. Scotti 43

United States v. Seale 62, 63, 64, 65, 67

United States v. Seavers 126

United States v. Sebetich 87

United States v. See 34, 163

United States v. Seifert 119, 125

United States v. Sellers, 89

United States v. Serlin 151

United States v. Shapiro 99

United States v. Shea 6

United States v. Sheffey 104

United States v. Sheldon 160

United States v. Sherlock 152, 153

United States v. Sherman 38

United States v. Shivers 153

United States v. Shoffner 82

United States v. Shovea 45

United States v. Silva 123

United States v. Silverstein 126

United States v. Simpson 21

United States v. Sims 99, 134

United States v. Singleton 78, 90

United States v. Sink 44

United States v. Sjeklocha 39

United States v. Slade 90, 91, 92

United States v. Sloan 163

United States v. Smart 104

United States v. Smith

21, 23, 25, 35, 43, 81, 82, 83,

89, 94, 102, 106

United States v. Smithers 89, 101

United States v. Snead 141

United States v. Solina 7

United States v. Somers 142

United States v. Sorzano 144

United States v. Sourapas 120

United States v. Southard 159

United States v. Sowa 17

United States v. Spectro Foods Corp. 51

United States v. Spence 21

United States v. Spiegel 11

United States v. Spitz 35

United States v. Spriggs 130, 149

United States v. St. Clair 105

United States v. Stanchich 82, 83

United States v. Stanfield 142

United States v. Stansfield 39

United States v. Starusko 47, 48

United States v. Stephenson 79, 80

United States v. Stewart 15, 135

United States v. Stierwalt 30

United States v. Strahl 43

United States v. Stratton 22

United States v. Sun Myung Moon 38, 39

United States v. Sylvester 23, 27

United States v. Talavera 152

United States v. Taylor 18, 23, 24, 36, 81

United States v. Telfaire 89

United States v. Tello 139

United States v. Tercero 96

United States v. Terry 104

United States v. Teslim 145, 146

United States v. Theodoropoulos 102, 103

United States v. Theriault 74

United States v. Thevis 94

United States v. Thigpen 104

United States v. Thomas 22, 37

United States v. Thompson

13, 16, 81, 160

United States v. Thoreen 86, 87

United States v. Throckmorton 23

United States v. Tindle 16

United States v. Toliver 114

United States v. Tolliver 16, 132

United States v. Tomasian 100

United States v. Tompkins 2

United States v. Towne 132

United States v. Trapnell 6

United States v. Trevino 40, 44

United States v. Troxler Hosiery Co.

58, 59, 61
Table of Cases 177

United States v. Trudell 64, 67

United States v. Truong Dinh Hung 42

United States v. Trupin 119

United States v. Tsui 128

United States v. Tucker 16

United States v. Tuley 128

United States v. Turk 153

United States v. Turner 32, 124

United States v. Turoff 151

United States v. Twentieth Century Fox

Film Corp. 61

United States v. Ulerio 33, 93

United States v. Ullah 12

United States v. United Mine Workers 52

United States v. United States Gypsum Co.

24

United States v. Valencia 129

United States v. Valentine 153

United States v. Valenzuela 104, 124

United States v. Valle 104

United States v. Van Cauwenberghe 153

United States v. Vargas 145

United States v. Vazquez 156

United States v. Veksler 46

United States v. Velasquez 101, 129

United States v. Vella 45

United States v. Vinson 82

United States v. Vretta 94

United States v. Wables 143

United States v. Wade 124

United States v. Wadsworth 7, 8

United States v. Walitwarangkul 124

United States v. Walker

25, 28, 32, 33, 49, 98, 130, 140, 153

United States v. Wallace 131

United States v. Walton 133

United States v. Warren 21, 36, 155

United States v. Washington

42, 81, 106, 140

United States v. Watson 128

United States v. Webb 140

United States v. Wedelstedt 34

United States v. Weed 90

United States v. Weeks 164

United States v. Weiner 132

United States v. Weiss 147

United States v. Welch 44

United States v. Welliver 138

United States v. Welty 1, 9

United States v. Wertz 115

United States v. West 102, 104, 148

United States v. Whetzel 161

United States v. White 40, 140

United States v. Widgery 26

United States v. Wiesle 157, 158

United States v. Wilcox 126

United States v. Wild 30

United States v. Willey 100

United States v. Williams

19, 32, 45, 57, 79, 87, 91, 92, 104, 106, 144

United States v. Williams-Davis 27

United States v. Williamson 78, 80

United States v. Wilson

16, 17, 18, 63, 68, 69, 70, 104, 105, 159

United States v. Wilwright 152

United States v. Witschner 96

United States v. Wodtke 136

United States v. Wong 20

United States v. Wood 50

United States v. Woods 123

United States v. Woolery 85

United States v. Wright 138

United States v. Young 147

United States v. Young-Bey 14

United States v. Yurasovich 127, 129

United States v. Zambrana 91, 92

United States v. Zappola 128

United States v. Zarintash 31

United States v. Zelinka 27, 28

United States v. Zepeda-Santana 32, 92

V

Vargas v. United States Parole Comm’n

145

Velez v. Schmer 85

Villanueva v. Leininger 131

Von Moltke v. Gillies 1

Vuitton et Fils S.A. v. Carousel Handbags

55

W

Weeks v. Angelone 25

Wheat v. United States 8

Wheel v. Robinson 26

White v. Illinois 109, 110

Williams v. Bartlett 2

Williams v. Johnson 109

Williams v. Lane 144

Williams v. Maggio 116

Williams v. United States 11

Wilson v. Mintzes 7, 8

Wilson v. Whitley 47

Winters v. United States 28

Wolfe v. Coleman 53

World of Sleep, Inc. v. La-Z-Boy Chair Co.

84

Wright v. Texas 29
178 Manual on Recurring Problems in Criminal Trials, fifth edition

Y

Yates v. United States

52, 58, 68, 69, 70, 72

Young v. United States 57

Z

Zafiro v. United States 150, 152

Zicarelli v. New Jersey State Comm’n of

Investigation 120
179

The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Stanley Marcus, U.S. Court of Appeals for the Eleventh Circuit

Judge Pauline Newman, U.S. Court of Appeals for the Federal Circuit

Chief Judge Jean C. Hamilton, U.S. District Court for the Eastern District of Missouri

Senior Judge Robert J. Bryan, U.S. District Court for the Western District of Washington

Judge William H. Yohn, Jr., U.S. District Court for the Eastern District of Pennsylvania

Chief Judge Robert F. Hershner, Jr., U.S. Bankruptcy Court for the Middle District of Georgia

Magistrate Judge Robert B. Collings, U.S. District Court for the District of Massachusetts

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Fern M. Smith

Deputy Director

Russell R. Wheeler

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was

established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the

director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.

The Director’s Office is responsible for the Center’s overall management and its relations with other

organizations. Its Systems Innovation & Development Office provides technical support for Center education and research. Communications Policy & Design edits, produces, and distributes all Center print

and electronic publications, operates the Federal Judicial Television Network, and through the Information Services Office maintains a specialized library collection of materials on judicial administration.

The Judicial Education Division develops and administers education programs and services for judges,

career court attorneys, and federal defender office personnel. These include orientation seminars, continuing education programs, and special-focus workshops. The Interjudicial Affairs Office provides information about judicial improvement to judges and others of foreign countries, and identifies international legal developments of importance to personnel of the federal courts.

The Court Education Division develops and administers education and training programs and services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial services

offices, and management training programs for court teams of judges and managers.

The Research Division undertakes empirical and exploratory research on federal judicial processes,

court management, and sentencing and its consequences, often at the request of the Judicial Conference

and its committees, the courts themselves, or other groups in the federal system. The Federal Judicial

History Office develops programs relating to the history of the judicial branch and assists courts with

their own judicial history programs.