Benchbook 

for U.S. District 

Court Judges

SIXTH EDITION

Federal Judicial Center

March2013
The Federal Judicial Center produced this Benchbook for U.S. District Court 

Judges in furtherance of its mission to develop and conduct education programs for the judicial branch. This Benchbook is not a statement of official Federal Judicial Center policy. Rather, it was prepared by, and it represents the 

considered views of, the Center’s Benchbook Committee, a group of experienced district judges appointed by the Chief Justice of the United States in his 

capacity as chair of the Center’s Board. The committee was assisted by Federal 

Judicial Center staff. 
iii

Preface

From the first edition in 1969 to this sixth edition more than forty years later, 

the Federal Judicial Center’s Benchbook for U.S. District Court Judges has 

provided a concise, practical guide to situations federal judges are likely to 

encounter on the bench. Although the Benchbook is written primarily for district and magistrate judges, bankruptcy judges also may find useful information in many of the sections. The Benchbook covers procedures that are 

required by statute, rule, or case law, and it offers detailed guidance from 

experienced trial judges on these requirements and other matters that arise 

in the courtroom. New judges in particular should benefit from the Benchbook, but even experienced judges may find useful reminders about how to 

deal with routine matters, suggestions for handling more complex issues, or 

helpful starting points when they face particular situations for the first time.

 This edition contains several significant additions, two of which come at 

the request of committees of the Judicial Conference of the United States. 

The Advisory Committee on Criminal Rules, then chaired by Judge Richard 

C. Tallman (9th Cir.), requested that we add a section on prosecutors’ duty to 

disclose favorable information to defendants under Brady v. Maryland, 373 

U.S. 83 (1963). Working with Judge Reena Raggi (2d Cir.), Judge Tallman’s 

successor as chair, the Benchbook Committee developed a primer on Brady

that addresses such issues as the basic duty to disclose exculpatory information, the elements of a Brady violation, and the timing of disclosures. New 

section 5.06 includes an extensive discussion of later Supreme Court and 

appellate case law interpreting and applying Brady; links to the Department 

of Justice’s disclosure policies and the Center’s report to the Advisory Committee in 2011 on Brady and Federal Rule of Criminal Procedure 16; and a list 

of sample cases in which disclosure of Brady material was required.

The Benchbook also has a new section on civil pretrial case management, 

section 6.01, which was the result of a joint request by the Committee on 

Rules of Practice and Procedure, then chaired by Judge Lee H. Rosenthal 

(S.D. Tex.), and the Advisory Committee on Civil Rules, then chaired by the 

late Judge Mark R. Kravitz (D. Conn.). The committees prepared a detailed 

outline of civil case management from the period before the Rule 16 conference through the final pretrial conference, focusing on the judge’s role as an 

active case manager. They were assisted by Professor Steven S. Gensler (University of Oklahoma College of Law); Judge David Campbell (D. Ariz.), then 

chair of the Discovery Subcommittee of the Civil Rules Committee; and the 

Reporters to the Civil Rules Committee, Professors Edward Cooper (University of Michigan Law School) and Richard Marcus (University of California, 

Hastings College of the Law). 

Another major change to the Benchbook is a completely revised section 

on sentencing. The Center has received many requests for a sentencing 
iv

“script” that judges can follow, and section 4.01 now contains an extensive 

colloquy for the sentencing hearing.

Other significant additions are a new subsection on restraining disruptive defendants (often referred to as “shackling”), a Padilla warning to noncitizens on the possible immigration consequences of a guilty plea, a similar 

warning to sex offenders about collateral consequences they may face, and 

expanded jury instructions on the use of social media.

It is important to emphasize that while much of the material in the 

Benchbook comes from case law, federal rules, and statutes, the particulars 

of the procedures suggested here represent only the recommendations of

the Benchbook Committee. The information provided is deemed to be accurate and valuable, but it is not intended to serve as legal authority and should 

not be cited as such. And because circuit law may vary, particularly with respect to procedures, judges should always familiarize themselves with the 

requirements of their circuit’s law.

One other change should be noted. Largely because of budgetary constraints, the Center will distribute printed copies of the Benchbook only to 

new judges. A limited number of paper copies will be available to judges upon request, but otherwise the Benchbook will be available electronically on 

the Center’s website. 

The materials presented in the Benchbook were prepared by experienced 

judges. The book is reviewed, updated, and added to by each succeeding 

Committee in collaboration with Center staff. The Center would like to thank 

the members of the Benchbook Committee, who are appointed by the Chief 

Justice. The Committee is chaired by Judge Irma E. Gonzalez (S.D. Cal.) and 

includes Judge Paul L. Friedman (D.D.C.), Judge Robert Holmes Bell (W.D. 

Mich.) (also chair of the Committee on Criminal Law), Chief Judge James F. 

Holderman (N.D. Ill.) (the FJC Board Liaison to the Benchbook Committee), 

Judge John W. Lungstrum (D. Kan.), and Chief Judge Patti B. Saris, Chair of 

the United States Sentencing Commission. Special thanks go to Judge 

Friedman, who took the lead in drafting the new section on Brady

disclosure, Judge Saris for doing the same with the revised section on 

sentencing, and Judge Gonzalez for organizing and overseeing all of the 

changes. We also thank Judge Barbara J. Rothstein, previous Director of the 

FJC, who worked with the Committee during the initial drafting of these 

revisions, and Senior Research Associate Laural Hooper of the Center’s 

Research Division, who shared her extensive knowledge of Brady disclosure 

issues. 

We hope you find this edition of the Benchbook to be useful, and we invite comments and suggestions for making it better. 

Jeremy D. Fogel

Director, Federal Judicial Center
v 

Contents

Preface iii

Section 1—Criminal pretrial

1.01—Initial appearance 1

1.02—Assignment of counsel or pro se representation 5

1.03—Release or detention pending trial 9

1.04—Offense committed in another district 15

1.05—Commitment to another district (removal proceedings) 17 

1.06—Waiver of indictment 23 

1.07—Arraignment and plea 27 

1.08—Joint representation of codefendants 29

1.09—Waiver of jury trial (suggested procedures, questions, and 

statements) 33

1.10—Speedy Trial Act 37

1.11—Delinquency proceedings 41

1.12—Mental competency in criminal matters 51

1.13—Referrals to magistrate judges (criminal matters) 59

Section 2—Plea taking/criminal trial

2.01—Taking pleas of guilty or nolo contendere 63

2.02—Taking pleas of guilty or nolo contendere (organization) 75

2.03—Trial outline—criminal 79

2.04—Findings of fact and conclusions of law in criminal cases and motions 83

2.05—Jury selection—criminal 85

2.06—Standard voir dire questions—criminal 89

2.07—Preliminary jury instructions—criminal case 93

2.08—General instructions to jury at end of criminal case 97

2.09—Verdict—criminal 101 

2.10—Trial and post-trial motions 105

2.11—Release or detention pending sentence or appeal 109 

Section 3—Capital cases 

3.01—Death penalty procedures 113 

Section 4—Sentencing

4.01—Sentencing procedure 125

4.02—Revocation of probation or supervised release 139
vi

Section 5— Special trial problems

5.01—Handling a disruptive or dangerous defendant 145

5.02—Grants of immunity 151

5.03—Invoking the Fifth Amendment 153

5.04—Handling the recalcitrant witness 155

5.05—Criminal defendant’s motion for mistrial 161 

5.06—Duty to disclose information favorable to defendant (Brady and Giglio 

material) 163

Section 6—Civil proceedings

6.01—Civil case management 189

6.02—Trial outline—civil 205

6.03—Findings of fact and conclusions of law in civil cases and motions 207

6.04—Jury selection—civil 211

6.05—Standard voir dire questions—civil 213

6.06—Preliminary jury instructions—civil case 215

6.07—General instructions to jury at end of civil case 219

6.08—Verdict—civil 223

6.09—Referrals to magistrate judges (civil matters) 227 

Section 7—Miscellaneous proceedings

7.01—Contempt—criminal 229 

7.02—Contempt—civil 235

7.03—Injunctions 239

7.04—Grand jury selection and instructions 245

7.05—Foreign extradition proceedings 257

7.06—Naturalization proceedings 259

7.07—Excluding the public from court proceedings 261

7.08—Oaths 265

Appendix: FJC publications 273

Index 281
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 1 

1.01 Initial appearance 

Fed. R. Crim. P. 5 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

The first appearance of the defendant after arrest is usually before a 

magistrate judge. If the defendant consents, the initial appearance 

may be conducted by video teleconferencing (Fed. R. Crim. P. 5(f)). 

A. If the arrest was made without a warrant, require that a complaint be prepared and filed pursuant to Fed. R. Crim. P. 3 and 4. 

[Note: If you have any doubts about the defendant’s ability to 

speak and understand English, consider appointing a certified 

interpreter in accordance with 28 U.S.C. § 1827. If the defendant 

is a foreign national, regardless of immigration status, consider advising 

the defendant of the right to consular notification.1

] 

1. Although judges are not currently required to notify defendants of the right to consular notification, doing so may avoid unnecessary litigation, cost, and delay. Note that a proposed amendment to Fed. R. Crim. P. 5(d)(1) would require the court “to inform non-citizen 

defendants at their initial appearance that (1) they may request that a consular officer from 

their country of nationality be notified of their arrest, and (2) in some cases international 

treaties and agreements require consular notification without a defendant’s request. The 

proposed rule does not, however, address the question whether treaty provisions requiring 

consular notification may be invoked by individual defendants in a judicial proceeding and 

what, if any, remedy may exist for a violation of Article 36 of the Vienna Convention.” See

the May 17, 2012 “Report of the Advisory Committee on Criminal Rules” in the Preliminary 

Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal 

Procedure, and the Federal Rules of Evidence at 205 (Committee on Rules of Practice and 

Procedure of the Judicial Conference of the United States, Aug. 15, 2012) (http:// 

www.uscourts.gov/uscourts/rules/rules-published-comment.pdf). The proposed “Committee 

Note” to the amendment states that having a judge provide this advice is not designed to relieve law enforcement officers of their responsibility to do so, but rather “to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of 

that action.” Id. at 208. 

For more detailed guidance relating to the arrest and detention of foreign nationals, 

see Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the 

Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/cna/ 

CNA_Manual_3d_Edition.pdf. See particularly the sections “Steps to Follow When a Foreign 

National Is Arrested or Detained” and “Suggested Statements to Detained Foreign Nationals.” See also 28 C.F.R. § 50.5(a) (“Some of the treaties obligate the United States to notify the 

consular officer only upon the demand or request of the arrested foreign national. On the 

NOTE

If the alleged offense 

was committed in 

another district, see 

infra section 1.05: 

Commitment to another district (removal 

proceedings)
Section 1.01: Initial appearance 

2 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

B. For a felony charge, inform the defendant 

1. of the nature of the complaint against him or her and of any affidavit

filed therewith;

2. of the defendant’s right to employ counsel or to request the assignment of counsel if he or she is unable to employ counsel (see infra

section 1.02: Assignment of counsel or pro se representation);

3. of the defendant’s right to have a preliminary hearing (Fed. R. Crim.

P. 5(d)(1)(D) and 5.1; 18 U.S.C. § 3060);

4. under what circumstances the defendant may secure pretrial release;

5. that the defendant is not required to make any statement;

6. that if the defendant has made a statement, he or she need say no

more;

7. that if the defendant starts to make a statement, he or she may stop

at any time (Miranda v. Arizona, 384 U.S. 436 (1966)); and

8. that any statement made by the defendant may be used against him

or her.

Fed. R. Crim. P. 5(d)(1). 

C. For a misdemeanor charge, the procedure is similar. See Fed. R. Crim. P. 

58(b)(2). The defendant must also be informed of the right to trial, 

judgment, and sentencing before a district judge unless he or she consents to trial, judgment, and sentencing before a magistrate judge. 

D. Determine whether the defendant has had a reasonable opportunity to 

consult with counsel. Allow further consultation if needed. Fed. R. Crim. 

P. 5(d)(2). 

E. Determine whether to detain or release the defendant (see infra section 

1.03: Release or detention pending trial). 

F. Schedule a preliminary hearing and/or detention hearing, if applicable. 

G. For release or detention of a material witness, see 18 U.S.C. § 3144.

H. If the person is before the court for violating probation or supervised release, see Fed. R. Crim. P. 32.1. Morrissey v. Brewer, 408 U.S. 471 (1972); 

Gagnon v. Scarpelli, 411 U.S. 778 (1973); Fed. R. Crim. P. 5(a)(2)(B). 

I. If the offense was committed in another district, see Fed. R. Crim. P. 

5(c)(3) and infra section 1.04: Offense committed in another district. If 

the defendant was arrested for failing to appear in another district, see 

Fed. R. Crim. P. 40 and infra section 1.05: Commitment to another district 

(removal proceedings). 

other hand, some of the treaties require notifying the consul of the arrest of a foreign national whether or not the arrested person requests such notification.”). 
Section 1.01: Initial appearance 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 3 

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984, at 11–15 (3d ed. 2006) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 5 

1.02 Assignment of counsel or pro se 

representation 

18 U.S.C. § 3006A; Fed. R. Crim. P. 44; CJA Forms 20, 23 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

If counsel has not been assigned by the magistrate judge before the defendant’s first court appearance, assignment of counsel should be the first item 

of business before the judge. 

[Note: If you have any doubts about the defendant’s ability to speak and 

understand English, consider appointing a certified interpreter in accordance with 28 U.S.C. § 1827.] 

A. If the defendant has no attorney: 

1. Inform the defendant

(a) of his or her constitutional right to be represented by an attorney

at every stage of the proceedings; 

(b) that if he or she is unable to afford an attorney, the court will appoint one without cost to him or her (18 U.S.C. § 3006A, Fed. R. 

Crim. P. 44); and 

(c) of the offense with which he or she is charged. 

2. Ask the defendant

(a) if he or she understands his or her right to an attorney;

(b) if he or she wishes and is able to obtain counsel; and

(c) if he or she wants the court to appoint counsel.

B. If the defendant requests appointed counsel: 

1. Require the completion of a Financial Affidavit by the defendant on

the appropriate Criminal Justice Act form.

2. Inform the defendant that he or she is swearing to the answers to the

questions on the affidavit and that he or she may be penalized for

perjury if he or she gives false information.

3. Determine whether the defendant is unable to afford privately retained counsel. If the defendant qualifies financially for courtappointed counsel, make that finding and sign the order appointing

counsel.
Section 1.02: Assignment of counsel or pro se representation 

6 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

C. If the defendant does not want counsel: 

The accused has a constitutional right to self-representation. Waiver of 

counsel must, however, be knowing and voluntary. This means that you 

must make clear on the record that the defendant is fully aware of the 

hazards and disadvantages of self-representation. 

 If the defendant states that he or she wishes to represent himself or 

herself, you should ask questions similar to the following: 

1. Have you ever studied law? 

2. Have you ever represented yourself in a criminal action? 

3. Do you understand that you are charged with these crimes: 

[state the crimes with which the defendant is charged]? 

4. Do you understand that if you are found guilty of the crime 

charged in Count I, the court must impose a special assessment of $100 and could sentence you to as many as ___ years 

in prison, impose a term of supervised release that follows 

imprisonment, fine you as much as $____, and direct 

you to pay restitution? 

[Ask the defendant a similar question for each crime 

charged in the indictment or information.] 

5. Do you understand that if you are found guilty of more 

than one of these crimes, this court can order that the 

sentences be served consecutively, that is, one after another? 

6. Do you understand that there are advisory Sentencing 

Guidelines that may have an effect on your sentence if 

you are found guilty? 

7. Do you understand that if you represent yourself, you are on 

your own? I cannot tell you or even advise you how you should 

try your case. 

8. Are you familiar with the Federal Rules of Evidence? 

9. Do you understand that the rules of evidence govern what evidence may or may not be introduced at trial, that in representing yourself, you must abide by those very technical rules, and 

that they will not be relaxed for your benefit? 

10. Are you familiar with the Federal Rules of Criminal Procedure? 

11. Do you understand that those rules govern the way a criminal 

action is tried in federal court, that you are bound by those 

rules, and that they will not be relaxed for your benefit? 

 

NOTE:

The assessment is 

$25 for a Class A 

misdemeanor, $10 

for a Class B, $5 

for a Class C or 

infraction.
Section 1.02: Assignment of counsel or pro se representation 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 7 

[Then say to the defendant something to this effect:] 

12. I must advise you that in my opinion, a trained lawyer would 

defend you far better than you could defend yourself. I think it 

is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. 

You are not familiar with the rules of evidence. I strongly urge 

you not to try to represent yourself. 

13. Now, in light of the penalty that you might suffer if you are 

found guilty, and in light of all of the difficulties of representing yourself, do you still desire to represent yourself and to 

give up your right to be represented by a lawyer? 

14. Is your decision entirely voluntary? 

 [If the answers to the two preceding questions are yes, say something to the following effect:] 

15. I find that the defendant has knowingly and voluntarily waived 

the right to counsel. I will therefore permit the defendant to 

represent himself [herself]. 

 It is probably advisable to appoint standby counsel, who can assist 

the defendant or can replace the defendant if the court determines 

during trial that the defendant can no longer be permitted to proceed pro se. 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 1–7 (Tucker Carrington & 

Kris Markarian eds., 6th ed. 2010) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 9 

1.03 Release or detention pending trial 

18 U.S.C. §§ 3141–3148; Fed. R. Crim. P. 46 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them. Victims also 

have a right “to be reasonably heard at any public proceeding in the district 

court involving release” of the defendant. § 3771(a)(4).] 

A. Preliminary 

1. Ask the defendant: 

(a) What is your full name? 

(b) How old are you? 

(c) Do you have an attorney? 

[If the defendant is unrepresented by counsel, inform the defendant of his or her right to counsel, and appoint counsel if the defendant is qualified (see supra section 1.02: Assignment of counsel or pro se representation).] 

2. If you are not sure the defendant understands English, ask the defendant: 

Are you able to speak and understand English? 

 [If the defendant has an attorney, ask counsel if he or she has 

been able to communicate with the defendant in English. If you 

doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.] 

3. Ask the U.S. attorney whether the government wants to move for detention under 18 U.S.C. § 3142(d) or (e). If the motion is made, hold 

the appropriate hearing. This may require a continuance (not to exceed five days on the defendant’s motion, three days on the government’s motion, except for good cause). 18 U.S.C. § 3142(f). If the 

motion is not made, proceed to the bail inquiry. 

B. Bail inquiry1

1. Review any pretrial services report provided by the probation office. 

2. Hear information relevant to considerations for fixing bail: 

 

 1. Paragraphs B through F of this section cover procedures for setting bail when detention is not requested, or when detention is denied and conditions of release must be set. The 

information obtained under paragraphs B through E is also relevant to deciding whether to 

detain the defendant under 18 U.S.C. § 3142(f). See paragraph H infra. 
Section 1.03: Release or detention pending trial 

10 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(a) the nature and circumstances of the offense charged, including 

whether the offense is a crime of violence or involves narcotics; 

(b) the weight of the evidence against the accused; 

(c) the history and characteristics of the accused, including 

(i) character, physical and mental condition, family ties, employment, financial resources, length of residence in the 

community, community ties, past conduct, history of drug or 

alcohol abuse, criminal history, and record concerning appearances at court proceedings; 

(ii) whether, at the time of the current offense or arrest, the defendant was on probation or parole or on release pending 

trial, sentencing, appeal, or completion of sentence under 

federal, state, or local law; 

(d) the nature and seriousness of danger to any person or the community if the accused is released.2

 18 U.S.C. § 3142(g). 

(e) In a case involving domestic violence, stalking, or violation of a 

protective order, give the alleged victim an opportunity to be 

heard regarding the danger posed by the defendant. 18 U.S.C. 

§ 2263.

(f) Give any other victims present in the courtroom “an opportunity 

to be reasonably heard.” 18 U.S.C. § 3771(a)(4). 

3. If a secured bond or surety bond is being considered, inquire about 

the defendant’s financial resources and, if appropriate, the sources 

of any property to be designated for potential forfeiture or offered as 

collateral. See 18 U.S.C. § 3142(c)(1)(B)(xii), (c)(2), and (g)(4). 

C. If there is a pretrial services agency in your district (18 U.S.C. § 3154), use 

the report of the interview by the pretrial services officer as an aid to fixing bail. If you do not have a pretrial services agency, consult the probation office. 

D. In developing information from the defendant relevant to bail, the following questions are typical: 

[Note: This information is usually included in the pretrial services report 

and is based on an interview of the defendant and independent verification of the information provided.] 

1. Are you married? 

2. Do you have any children? 

3. Are you living with your spouse or children? Do you support your 

spouse or children? 

 

 2. A crime victim has the right “to be reasonably protected from the accused.” 18 U.S.C. 

§ 3771(a)(1). 
Section 1.03: Release or detention pending trial 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 11

4. Do you support or live with anyone else? Who? 

5. Are you employed? 

6. How long have you worked for your current employer? 

7. What is your average weekly or monthly take-home pay? 

8. Do you own an automobile? 

9. Do you have a savings account, bonds, stocks, or similar liquid 

assets? 

10. Do you own or rent your home? 

11. Do you own any other real property? 

12. How long have you lived at your current address? 

13. How long have you lived in this city [state] or the surrounding 

area? 

14. Do you have a telephone? Where can you be reached by telephone? 

15. Do you possess a passport? 

 [Note: The defendant might be asked to deposit his or her passport with the marshal (or bailiff) as a condition of bail.] 

16. Do you owe anyone money? Do you have to make mortgage 

payments, time payments, or other periodic payments? 

17. Are you regularly receiving medical treatment? 

18. Have you ever been treated or hospitalized for mental illness? 

E. Ask the U.S. attorney for the defendant’s rap sheet (fingerprinting record) to determine past convictions and the issuance of bond forfeiture 

warrants indicating prior failure to appear for scheduled court hearings. 

[Note: This information is also typically included in the pretrial services 

report.] 

F. Set bail with appropriate conditions, 18 U.S.C. § 3142(b) or (c), or hold a 

detention hearing under § 3142(f). If you do not hold a detention hearing: 

1. In setting bail, determine whether appearance and community 

safety can reasonably be ensured by releasing the accused on personal recognizance or on an unsecured appearance bond with only 

the condition that the accused not commit a crime while on release. 

2. If you determine that further conditions are necessary, set them. Do 

not set a financial condition that the defendant cannot meet. 

3. Explain the conditions to the defendant. 

4. Execute a release order and obtain the defendant’s written acknowledgment of the conditions of release and the consequences of violation. 
Section 1.03: Release or detention pending trial 

12 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

5. Tell the defendant when to appear in court again, or explain how he 

or she will be advised when next to appear in court. 

6. Explain to the defendant, as 18 U.S.C. § 3142(h)(2) requires, 

(a) that failing to appear in court as required is a crime for which he or 

she can be sentenced to imprisonment (18 U.S.C. § 3146); 

(b) that if the defendant violates any condition of release, a warrant 

for arrest may be issued, and he or she may be jailed until trial 

and may also be prosecuted for contempt of court (18 U.S.C. 

§ 3148); 

(c) that committing a crime while on release may lead to more severe 

punishment than he or she would receive for committing the 

same crime at any other time (18 U.S.C. § 3147); and 

(d) that it is a crime to try to influence a juror, to threaten or attempt 

to bribe a witness or other person who may have information 

about this case, to retaliate against anyone for providing information about the case, or to otherwise obstruct the administration of 

justice (18 U.S.C. §§ 1503, 1510, 1512, 1513). 

7. As required under § 3142(h)(1), include in the release order a written 

statement that clearly sets forth all the conditions of release to which 

the defendant is subject. Also, “state in writing, or orally on the record, the reasons for an order regarding the release or detention of a 

defendant.” Fed. R. App. P. 9(a)(1). 

G. If temporary detention for up to ten days is sought under 18 U.S.C. 

§ 3142(d): 

1. Ask the U.S. attorney to state the factual basis for the motion. 

2. Give the defendant’s counsel an opportunity to respond. 

3. Determine whether the defendant fits within one or more of the 

categories set forth in 18 U.S.C. § 3142(d)(1). 

4. If the defendant fits within one or more of these categories, determine whether he or she “may flee or pose a danger to any other person or the community.” 18 U.S.C. § 3142(d)(2). If so, detention is 

mandatory. 

5. If detention for up to ten days is not ordered, proceed to the release 

inquiry. If detention for up to ten days is ordered: 

(a) Direct the U.S. attorney to notify the appropriate officials immediately and to notify the court and the defendant’s counsel immediately if any such official expressly declines or fails to take the 

defendant into custody. 

(b) Fix a date and time for a bail hearing to be held in the event that 

the defendant is not taken into custody by any such official. 

(c) Execute a temporary detention form. 
Section 1.03: Release or detention pending trial 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 13

H. If pretrial detention has been sought under 18 U.S.C. § 3142(e), conduct 

the required hearing under § 3142(f) (see § 3142(g) and paragraphs B 

through E supra for factors to consider): 

1. Make findings of fact and state the reasons for the decision. If detention is ordered, these must be written. 18 U.S.C. § 3142(i)(1). See also 

Fed. R. App. P. 9. 

2. If detention is not ordered, set bail, if any, impose conditions of release under § 3142(b) or (c), and issue a release order pursuant to 18 

U.S.C. § 3142(h). See paragraphs B through F supra. 

3. If detention is ordered, execute a pretrial detention order that meets 

the requirements of 18 U.S.C. § 3142(i). 

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984 (3d ed. 2006) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 15

1.04 Offense committed in another district 

Fed. R. Crim. P. 5(c)(3), 20

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

The following procedure applies if the defendant and the government consent to transfer the prosecution of an offense committed in another district 

to the district where the defendant was arrested or is being held. Fed. R. 

Crim. P. 20(a). 

A. Preliminary 

Have the oath administered and ask the defendant: 

1. What is your full name? 

2. How old are you? 

3. How far did you go in school? What is your employment experience? 

 [If you are not sure the defendant understands English, ask the 

defendant:] 

4. Are you able to speak and understand English? 

 [If the defendant has an attorney, ask counsel if he or she has 

been able to communicate with the defendant in English. If you 

doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.] 

5. Are you currently or have you recently been under the care of a 

physician or a psychiatrist, or been hospitalized or treated for 

narcotics addiction? Have you taken any drugs, medicine, or pills 

or drunk any alcoholic beverage in the past twenty-four hours? 

 [If the answer to either question is yes, pursue the subject with 

the defendant and with counsel to determine that the defendant 

is currently competent to waive proceedings in the district where 

the offense was committed.] 

6. Do you have an attorney? 

 [If he or she does not have an attorney, inform the defendant of 

the right to counsel and appoint counsel if the defendant qualifies. See supra section 1.02: Assignment of counsel or pro se representation.] 
Section 1.04: Offense committed in another district 

16 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

B. Obtain a waiver of indictment if one is required (see infra section 1.06: 

Waiver of indictment). 

C. Explain that the defendant’s case cannot be handled in this court unless 

he or she wishes to plead guilty or nolo contendere. [Note: For juveniles, 

see 18 U.S.C. § 5031 and Fed. R. Crim. P. 20(d).] 

D. Question the defendant to ascertain on the record that the defendant 

understands he or she is agreeing to 

1. plead guilty or nolo contendere; 

2. waive proceedings in the district in which the crime was allegedly 

committed; and 

3. be proceeded against in this court. 

E. Explain to the defendant and ask if the defendant understands that 

1. he or she has a right to be tried in the district where the crime is alleged to have been committed; 

2. he or she cannot be convicted or sentenced in this court unless he or 

she consents freely; and 

3. if he or she does not consent to be proceeded against in this court, he 

or she may be proceeded against in the district in which the crime 

was allegedly committed. 

F. Obtain the defendant’s written statement incorporating the understanding described above. 

G. Obtain the written consents of the U.S. attorneys. 

H. Take the defendant’s plea. [Note: All points should be covered in taking 

the plea, as in an ordinary arraignment. See relevant portions of infra

sections 1.07: Arraignment and plea and 2.01: Taking pleas of guilty or 

nolo contendere.] 

I. If the defendant or the government does not consent to proceedings in 

this court, follow the procedures in Fed. R. Crim. P. 5(c)(3) for transfer to 

another district. See also infra section 1.05: Commitment to another district (removal proceedings). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 17

1.05 Commitment to another district 

(removal proceedings) 

Fed. R. Crim. P. 5, 32.1, and 40

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

A. Arrest of an individual in this district for an alleged offense committed in 

another district (U.S. attorney will have filed a Petition for Removal) Fed. 

R. Crim. P. 5(c). 

1. Ascertain from the U.S. attorney or arresting officer, or from court file 

materials received from the charging district 

(a) where the alleged offense was committed; 

(b) when the defendant was arrested and whether the arrest was 

with or without a warrant; and 

(c) whether an indictment has been returned or an information or 

complaint filed. 

2. If the arrest in this district was without a warrant (which rarely occurs): 

(a) The defendant cannot be ordered transferred until a complaint 

and warrant are issued in the charging district. 

(b) The complaint must be filed promptly. See Fed. R. Crim. P. 5(b). 

3. If it is not evident, ask the defendant if he or she can speak and understand English. If the defendant has an attorney, ask if counsel 

has been able to communicate with the defendant in English. If you 

doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.

 If the defendant is a foreign national, regardless of immigration 

status, consider advising the defendant of the right to consular notification.1

 

 1. Although judges are not currently required to notify defendants of the right to consular notification, doing so may avoid unnecessary litigation, cost, and delay. Note that a proposed amendment to Fed. R. Crim. P. 5(d)(1) would require the court “to inform non-citizen 

defendants at their initial appearance that (1) they may request that a consular officer from 

their country of nationality be notified of their arrest, and (2) in some cases international 

treaties and agreements require consular notification without a defendant’s request. The 

proposed rule does not, however, address the question whether treaty provisions requiring 

consular notification may be invoked by individual defendants in a judicial proceeding and 

what, if any, remedy may exist for a violation of Article 36 of the Vienna Convention.” See 
Section 1.05: Commitment to another district (removal proceedings) 

18 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

4. Without asking the defendant to state his or her name or other identifying information at this time, advise the defendant of his or her 

(a) general rights under Fed. R. Crim. P. 5 (nature of charge, right to 

counsel, right to remain silent—see supra section 1.01: Initial appearance); 

(b) right to waive removal and voluntarily return to the district where 

charges are pending; 

(c) right, if charges are based on complaint and warrant, to 

(i) have a preliminary examination in this district; 

(ii) have a preliminary examination in the district where the 

charges are pending; or 

(iii) waive preliminary examination. 

(d) right to an identity hearing and the right to waive that hearing; 

(e) right under Fed. R. Crim. P. 20 to plead guilty or nolo contendere 

in this district if both U.S. attorneys consent. 

5. If the defendant appears without counsel, appoint counsel or allow 

time for the defendant to retain counsel; set an appropriate hearing 

or examination date to allow counsel time to confer and elect options. 

6. If the defendant appears with counsel or after counsel has been appointed or retained, ascertain which of the above options (4(b)–4(d) 

of this section) he or she desires, then sign an Order of Removal 

(whereby the defendant returns voluntarily) or set an appropriate 

examination or hearing date. 

 

the May 17, 2012 “Report of the Advisory Committee on Criminal Rules” in the Preliminary 

Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal 

Procedure, and the Federal Rules of Evidence at 205 (Committee on Rules of Practice and 

Procedure of the Judicial Conference of the United States, Aug. 15, 2012) (http:// 

www.uscourts.gov/uscourts/rules/rules-published-comment.pdf). The proposed “Committee 

Note” to the amendment states that having a judge provide this advice is not designed to relieve law enforcement officers of their responsibility to do so, but rather “to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of 

that action.” Id. at 208. 

 For more detailed guidance relating to the arrest and detention of foreign nationals, 

see Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the 

Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/cna/ 

CNA_Manual_3d_Edition.pdf on the U.S. Department of State website, http://travel.state. 

gov/consul_notify.html. See particularly the sections “Steps to Follow When a Foreign National Is Arrested or Detained” and “Suggested Statements to Arrested or Detained Foreign 

Nationals.” See also 28 C.F.R. § 50.5(a) (“Some of the treaties obligate the United States to 

notify the consular officer only upon the demand or request of the arrested foreign national. 

On the other hand, some of the treaties require notifying the consul of the arrest of a foreign 

national whether or not the arrested person requests such notification.”). 
Section 1.05: Commitment to another district (removal proceedings) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 19

(a) If the defendant waives the right to an identity hearing, have the 

defendant state his or her full name and age for the record. 

(b) Set the date of the hearing or examination to allow time for inquiry into possible Fed. R. Crim. P. 20 transfer. 

(c) Keep in mind Speedy Trial Act requirements (see infra section 

1.10: Speedy Trial Act). 

7. Determine whether to release or detain the defendant pending further proceedings. A request for detention or the amount of bail previously fixed in the district where charges are pending must be taken 

into account but is not binding. A different action, however, requires 

reasons in writing. Note that the defendant is entitled to only one detention hearing and may wish to reserve that right until after being 

transferred to the charging district. 

 [Note: If there are any victims of the offense present, give them an 

“opportunity to be reasonably heard” regarding the defendant’s 

possible release. 18 U.S.C. § 3771(a)(4).] 

8. Conduct hearings: 

(a) Preliminary hearing (Fed. R. Crim. P. 5.1). 

(b) Identity hearing (Fed. R. Crim. P. 5(c)(3)(D)(ii)) 

(i) Hear evidence as to physical descriptions, fingerprints, 

handwriting, hearsay statements, telephone checks with 

charging district, photographs, probation officer’s testimony, etc. 

(ii) The government has the burden of proof to show probable 

cause that the person arrested is the person named in the 

charging instrument. 

(c) Fed. R. Crim. P. 20 transfer plea (see supra section 1.04: Offense 

committed in another district). 

9. Order the defendant held and transferred (Order of Removal), or discharged; transmit papers and any bail to the clerk of the charging district. 

B. Arrest of a probationer or a supervised releasee in a district other than 

the district of supervision (Fed. R. Crim. P. 32.1(a)(5)).2

1. Determine the time and place of, and authority for, the arrest; inform 

the defendant of the charges; and advise the defendant of general 

rights (nature of charge, right to counsel, right to remain silent). 

 

 2. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771, may apply if the violation 

that caused the arrest involved the commission of a federal crime. It is not clear whether the 

rights of victims of the original offense carry over to court proceedings for violations of probation or supervised release. 
Section 1.05: Commitment to another district (removal proceedings) 

20 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

2. Ascertain if jurisdiction has been or will be transferred to this district 

pursuant to 18 U.S.C. § 3605 (made applicable to supervised releasees by 18 U.S.C. § 3586). If so, proceed under Fed. R. Crim. P. 32.1 

as a normal revocation case in this district. 

3. If the alleged violation occurred in this district and if jurisdiction is 

not transferred, schedule and hold a prompt preliminary hearing after counsel has been secured. 

(a) If probable cause is found, hold the defendant to answer in the 

supervising district, and order him or her transferred there. 

(b) If no probable cause is found, dismiss the proceedings and notify 

the supervising court. 

4. If the alleged violation occurred in a district other than this one, 

schedule and hold a prompt identity hearing (unless waived) after 

counsel has been secured. 

(a) If, upon production of certified copies of the probation order, warrant, and application for warrant, the defendant is found to be 

the person named in the warrant, hold the defendant to answer 

in the supervising district and order him or her transferred there. 

Or

(b) Dismiss the proceedings and notify the supervising court if you 

find the defendant is not the person so named. 

[Note: An amendment to Fed. R. Crim. P. 40(a), effective December 1, 2006, 

specifically authorizes magistrate judges to set release conditions for persons arrested under a warrant issued in another district for violating conditions of release set in that district.] 

C. Arrest for failure to appear in another district (bench warrant) (Fed. R. 

Crim. P. 40(a) and (b)).3

 When the person has been arrested in this district on a warrant issued in 

another district for failure to appear, pursuant to a subpoena or the 

terms of his or her release: 

1. Determine the time and place of, and authority for, the arrest; inform 

the defendant of the charges; and advise the defendant of general 

rights (nature of charges, right to counsel, right to remain silent). 

2. Schedule and hold an identity hearing (unless waived) after counsel 

has been secured. 

(a) If, upon production of the warrant or a certified copy, you find 

that the person before the court is the person named in the warrant, hold the defendant to answer in the district where the warrant was issued and order him or her transferred there. 

 

 3. Note: Rule 40(d) was added to allow an appearance under Rule 40 to be conducted by 

video teleconference, with the defendant’s consent, in conformity with Rule 5(f). 
Section 1.05: Commitment to another district (removal proceedings) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 21 

Or

(b) Dismiss the proceedings and notify the district where the warrant 

was issued if you find the defendant is not the person so named. 

3. The court may modify any previous release or detention order issued 

by the other district, but must state in writing the reasons for doing 

so. Fed. R. Crim. P. 40(c). 

4. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771, may be applicable to this hearing. 

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984, at 13 (3d ed. 2006) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 23

1.06 Waiver of indictment 

Fed. R. Crim. P. 6 & 7 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

A. Preliminary 

Have the oath administered and ask the defendant: 

1. What is your full name? 

2. How old are you? 

3. How far did you go in school? What is your employment 

experience? 

 [If you are not sure the defendant can understand English, ask:] 

4. Are you able to speak and understand English? 

 [If the defendant has an attorney, ask counsel if he or she has 

been able to communicate with the defendant. If you doubt the 

defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.] 

5. Are you currently or have you recently been under the care of a 

physician or a psychiatrist or been hospitalized or treated for narcotics addiction? Have you taken any drugs, medicine, or pills or 

drunk any alcoholic beverage in the past twenty-four hours? 

 [If the answer to either question is yes, pursue the subject with 

the defendant and with counsel to determine that the defendant 

is currently competent to waive indictment.]

6. Do you have an attorney? 

 [If the defendant does not have an attorney, inform the defendant of the right to counsel and appoint counsel if the defendant 

qualifies (see supra section 1.02: Assignment of counsel or pro se 

representation).] 

B. Ask the defendant: 

 Have you been furnished with a copy of the charge(s) against 

you? 

C. Explain in detail the charge(s) against the defendant and make clear 

that he or she is charged with committing a felony. 

NOTE

An offense that may be 

punishable by death 

must be prosecuted by 

indictment and therefore precludes waiver 

of indictment. Fed. R. 

Crim. P. 7(a) and (b).
Section 1.06: Waiver of indictment 

24 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

D. Ask the defendant: 

 Do you understand the charge(s) against you? 

E. Inform the defendant: 

1. You have a constitutional right to be charged by an indictment of 

a grand jury, but you can waive that right and consent to being 

charged by information of the U.S. attorney. 

2. Instead of an indictment, these felony charges against you have 

been brought by the U.S. attorney by the filing of an information. 

3. Unless you waive indictment, you may not be charged with a felony unless a grand jury finds by return of an indictment that there 

is probable cause to believe that a crime has been committed and 

that you committed it. 

4. If you do not waive indictment, the government may present the 

case to the grand jury and ask it to indict you. 

5. A grand jury is composed of at least sixteen and not more than 

twenty-three persons, and at least twelve grand jurors must find 

that there is probable cause to believe you committed the crime 

with which you are charged before you may be indicted. 

 [Fed. R. Crim. P. 6(a) and 6(f).] 

6. The grand jury might or might not indict you. 

7. If you waive indictment by the grand jury, the case will proceed 

against you on the U.S. attorney’s information just as though you 

had been indicted. 

F. Ask the defendant: 

1. Have you discussed waiving your right to indictment by the grand 

jury with your attorney? 

2. Do you understand your right to indictment by a grand jury? 

3. Have any threats or promises been made to induce you to waive 

indictment? 

4. Do you wish to waive your right to indictment by a grand jury? 

 [Fed. R. Crim. P. 7(b).] 

G. Ask defense counsel if there is any reason the defendant should not 

waive indictment. 

H. If the defendant waives indictment 

1. Have the defendant sign the waiver of indictment form in open 

court, state that the court finds that the waiver is knowingly and vol-
Section 1.06: Waiver of indictment 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 25

untarily made by the defendant and is accepted by the court, and 

enter an order and finding to that effect.1

2. Proceed to arraignment on information (see infra section 1.07: Arraignment and plea). 

I. If the defendant does not waive indictment: 

1. Ask the U.S. attorney whether the government intends to present the 

matter to the grand jury. 

(a) If so, detain the defendant pending indictment or continue or reset bail (see supra section 1.03: Release or detention pending 

trial). 

(b) If not, discharge the defendant. 

 [Note: Because discharge entails a “release” of the defendant, the 

Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(4), may require allowing any victims of the offense to be “reasonably heard.”] 

 

 1. If the waiver was signed before the hearing, the court should examine the signatures 

on the form and have the defendant and defendant’s counsel verify that the signatures are 

theirs. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 27

1.07 Arraignment and plea 

Fed. R. Crim. P. 10 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. 

It may be advisable to ask the prosecutor if there are any victims and, if so, 

whether the government has fulfilled its duty to notify them.] 

A defendant who was charged by indictment or misdemeanor information 

may waive appearance at the arraignment if a written waiver is signed by the 

defendant and defense counsel, the defendant affirms that a copy of the 

indictment or information was received, the plea is not guilty, and the court 

accepts the waiver. Fed R. Crim. P. 10(b). 

 The following procedure may be used whether the defendant appears in 

person or has consented to video teleconference under Fed R. Crim. P. 10(c). 

If the arraignment is by video teleconferencing and there is no prior written 

consent, begin the arraignment by having the defendant explicitly consent 

to conduct the arraignment by video teleconference and waive the right to 

appear in person. 

A. Preliminary 

Have oath administered and ask the defendant: 

1. What is your full name? 

2. How old are you? 

3. How far did you go in school? What is your employment experience? 

 [If you are not sure the defendant can understand English, ask:] 

4. Are you able to speak and understand English? 

 [If the defendant has an attorney, ask counsel if he or she has 

been able to communicate with the defendant. If you doubt the 

defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.] 

5. Are you currently or have you recently been under the care of a 

physician or a psychiatrist or been hospitalized or treated for narcotics addiction? Have you taken any drugs, medicine, or pills or 

drunk any alcoholic beverage in the past twenty-four hours? 

 [If the answer to either question is yes, pursue the subject with 

the defendant and with counsel to determine that the defendant 

is currently competent to enter a plea.]

6. Do you have an attorney? 
Section 1.07: Arraignment and plea 

28 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 [If not, see supra section 1.02: Assignment of counsel or pro se 

representation).] 

B. Ask the defendant: 

1. Have you received a copy of the indictment [information]? 

2. Have you had time to consult with your attorney? 

3. Do you want the indictment [information] read, or will you waive 

the reading of the indictment [information]? 

 [Have the indictment [information] read if the defendant so desires.] 

4. How do you plead to the charges? 

C. If the defendant’s plea is not guilty: 

1. Set motion and/or trial dates according to your local Speedy Trial Act 

plan. 

2. Continue or reset bail (see supra section 1.03: Release or detention 

pending trial). 

D. If the defendant indicates a desire to plead guilty or nolo contendere, 

see infra section 2.01: Taking pleas of guilty or nolo contendere. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 29

1.08 Joint representation of 

codefendants 

Fed. R. Crim. P. 44(c)(2) 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

Introduction 

Fed. R. Crim. P. 44(c)(2) provides as follows in cases of joint representation: 

The court must promptly inquire about the propriety of joint representation 

and must personally advise each defendant of the right to effective assistance 

of counsel, including separate representation. Unless there is good cause to 

believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel. 

 When a trial court becomes aware of a potential conflict of interest, it 

must pursue the matter, even if counsel does not. Judges should strongly 

recommend to codefendants that they avoid dual representation and 

should make clear that a court-appointed attorney is available to represent 

each defendant or to consult with each defendant concerning dual representation. This section is a hearing procedure for so advising defendants 

and for obtaining a waiver of the right to separate counsel. Note, however, 

that in certain situations, a district court may disqualify an attorney, despite 

a defendant’s voluntary, knowing, and intelligent waiver of the right to conflict-free counsel. See Wheat v. United States, 486 U.S. 153, 163 (1988) (“district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be 

demonstrated before trial, but in the more common cases where a potential 

for conflict exists which may or may not burgeon into an actual conflict as the 

trial progresses”). 

Procedure 

A. Determine if the defendant is competent. 

1. Ask the defendant: 

(a) Mr., Ms., Mrs., Miss _________, how old are you? 

(b) How far did you go in school? 

 [If you are not sure the defendant can understand English, ask:] 

(c) Are you able to speak and understand English? 
Section 1.08: Joint representation of codefendants 

30 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 [Ask defense counsel if he or she has been able to communicate 

with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 

U.S.C. § 1827.] 

(d) Have you taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours? Do you understand what is happening today? 

2. Then ask defense counsel and prosecutor: 

 Do either of you have any doubt as to the defendant’s competence at this time? 

3. State your finding on the record of the defendant’s competence. 

B. Emphasize the seriousness of the charges. Tell the defendant the maximum punishment for each count. 

C. Tell the defendant: 

1. If at any time you do not understand something or have a question, consult your lawyer or ask me any questions. 

2. This proceeding can be continued to another day if you wish to 

consult another lawyer. 

D. Advise the defendant about the apparent conflict of interest in his or her 

lawyer’s representation. For example, state: 

 The United States Constitution gives every defendant the right to 

effective assistance of counsel. When one lawyer represents two or 

more defendants in a case, the lawyer may have trouble representing all of the defendants with the same fairness. This is a conflict of interest that denies the defendant the right to effective assistance of counsel. Such conflicts are always a potential problem 

because different defendants may have different degrees of involvement. Each defendant has the right to a lawyer who represents only him or her. 

E. Point out the various ways in which dual representation might work to 

the defendant’s disadvantage. This may be done by giving the defendant a form to read or by advising the defendant in the following way: 

1. Dual representation may inhibit or prevent counsel from conducting an independent investigation in support of each defendant’s 

case. For example, the attorney–client privilege may prevent your 

lawyer from communicating to you information gathered from 

another defendant. 

2. The government may offer immunity or offer to recommend a 

lesser sentence to one defendant for cooperating with the government. Should you receive such an offer, your lawyer ought to 
Section 1.08: Joint representation of codefendants 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 31

advise you whether or not to accept it. But if your lawyer advises 

you to accept the offer, it may harm the cases of the other defendants represented by that lawyer. 

3. The government may let a defendant who is not as involved as 

other defendants plead guilty to lesser charges than the other defendants. After the guilty plea, however, the government may require the defendant to testify. A lawyer who represents more than 

one defendant might recommend that the first defendant not 

plead guilty in order to protect the other defendants that the lawyer represents. On the other hand, the lawyer might recommend 

that the first defendant plead guilty, which might harm the cases 

of the other defendants. 

4. Dual representation may affect how your lawyer exercises peremptory challenges or challenges for cause during jury selection. Potential jurors who may be perceived as favorable to you may be 

perceived as harmful to another defendant, or jurors who may be 

perceived as favorable to other defendants may be harmful to 

you. 

5. Sometimes one of the defendants represented by a lawyer will 

take the stand to testify in his or her own behalf. In order to represent the other defendants fairly, the lawyer should question the 

defendant on the stand as completely as possible. However, the 

lawyer may not be able to do that because he or she cannot ask 

the defendant as a witness about anything that the defendant has 

told the lawyer in confidence. 

6. The best defense for a single defendant often is the argument that 

while the other defendants may be guilty, he or she is not. A lawyer representing two or more defendants cannot effectively make 

such an argument. 

7. Evidence that helps one defendant might harm another defendant’s case. When one lawyer represents two or more defendants, 

the lawyer might offer or object to evidence that could help one 

defendant but harm another. 

8. Regarding sentencing, dual representation would prohibit the 

lawyer from engaging in post-trial negotiations with the government as to full disclosure by one defendant against the other. It 

would also prohibit the lawyer from arguing the relative culpability of the defendants to the sentencing judge. 

F. An attorney proposing to represent codefendants should be required to 

assure the court that there will be no conflict that could result in a lack of 

effective assistance of counsel or other prejudice to any defendant. 
Section 1.08: Joint representation of codefendants 

32 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

G. Consider recommending that the defendant consult with other, independent counsel about the wisdom of waiving the right to separate 

counsel. Offer to make CJA counsel available (if appropriate) and allow 

adjournment for that purpose. 

H. If the defendant wants to waive the right to separate counsel, get a clear, 

on-the-record oral waiver by him or her of the right to separate counsel. 

In addition, you may want the defendant to sign a written waiver. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 33

1.09 Waiver of jury trial 

(suggested procedures, questions, and 

statements) 

Fed. R. Crim. P. 23 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if 

so, whether the government has fulfilled its duty to notify them.] 

Introduction 

Trial by jury is a fundamental constitutional right, and waiver of the right to 

a jury trial should be accepted by a trial judge only when three requirements 

are satisfied: 

1. the procedures of Fed. R. Crim. P. 23(a) have been followed; 

2. the waiver is knowing and voluntary; and 

3. the defendant is competent to waive a constitutional right. 

 Fed. R. Crim. P. 23(a) requires that the accused’s waiver of the right to 

trial by jury be 

1. made in writing; 

2. consented to by the government; and 

3. approved by the court. 

 Following this rule alone does not satisfy the requirement that the waiver 

be knowing and voluntary, however. 

 The trial judge should ascertain on the record 

1. whether the accused understands that he or she has a right to be 

tried by a jury; 

2. whether the accused understands the difference between a jury trial 

and a nonjury trial; and 

3. whether the accused has been made to understand the advantages 

and disadvantages of a jury trial. 

 Before approving the waiver, a trial judge must consider a defendant’s 

mental capacity to waive a jury trial. A defendant is not competent to waive a 

constitutional right if mental incapacity or illness substantially impairs his or 

her ability to make a reasoned choice among the alternatives presented and 

to understand the nature and consequences of the waiver. 

 When information available from any source presents a question as to 

the defendant’s competence to waive a jury trial, sua sponte inquiry into 

that competence must be made. 
Section 1.09: Waiver of jury trial 

34 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 In any psychiatric examination ordered under the inherent power of the 

court or under 18 U.S.C. § 4241, the examining psychiatrist should be directed to give an opinion on the defendant’s competence to make an intelligent waiver. Whenever any question as to the defendant’s competence 

arises, a specific finding of competence or incompetence should be made. 

 Finally, if any doubt of competence exists, the judge should order a jury 

trial. 

Suggested procedures and questions 

A. Preliminary questions for the defendant 

1. The court is informed that you desire to waive your right to a jury 

trial. Is that correct? 

2. Before accepting your waiver to a jury trial, there are a number of 

questions I will ask you to ensure that it is a valid waiver. If you 

do not understand any of the questions or at any time wish to interrupt the proceeding to consult further with your attorney, 

please say so, since it is essential to a valid waiver that you understand each question before you answer. Do you understand? 

3. What is your full name? 

4. How old are you? 

5. How far did you go in school?

 [If you are not sure the defendant understands English, ask:] 

6. Are you able to speak and understand English? 

 [Ask defense counsel if he or she has been able to communicate 

with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 

U.S.C. § 1827.] 

7. What is your employment background? 

8. Have you taken any drugs, medicine, or pills, or drunk any alcoholic beverage in the past twenty-four hours? 

9. Do you understand that you are entitled to a trial by jury on the 

charges filed against you? 

10. Do you understand that a jury trial means that you will be tried by 

a jury consisting of twelve people and that all of the jurors must 

agree on the verdict? 

11. Do you understand that you have the right to participate in the selection of the jury? 

12. Do you understand that if I approve your waiver of a jury trial, the 

court will try the case and determine your innocence or guilt? 

13. Have you discussed with your attorney your right to a jury trial? 
Section 1.09: Waiver of jury trial 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 35

14. Have you discussed with your attorney the advantages and disadvantages of a jury trial? Do you want to discuss this issue further 

with your attorney? 

B. Questions for counsel 

In determining whether the accused has made a “knowing and voluntary” waiver and is competent to waive the right to a jury trial, the judge 

should question both the defense counsel and the prosecutor. 

1. Ask the defense counsel: 

(a) Have you discussed with the defendant the advantages and 

disadvantages of a jury trial? 

(b) Do you have any doubt that the defendant is making a 

“knowing and voluntary” waiver of the right to a jury trial? 

(c) Has anything come to your attention suggesting that the defendant may not be competent to waive a jury trial? 

2. Ask the prosecutor: 

 Has anything come to your attention suggesting that the defendant may not be competent to waive a jury trial? 

C. Form of waiver and oral finding 

1. A written waiver of a jury trial must be signed by the defendant, approved by the defendant’s attorney, consented to by the government, and approved by the court. 

2. It is suggested that the judge state orally: 

 This court finds that the defendant has knowingly and voluntarily 

waived his [her] right to a jury trial, and I approve that waiver. 

3. An appropriate written waiver of jury trial may take the form of the 

one shown on the next page. 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 9–10 (Tucker Carrington & 

Kris Markarian eds., 6th ed. 2010) 
Section 1.09: Waiver of jury trial 

36 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

In the U.S. District Court 

for the District of [ ] 

United States of America ) 

 ) No. Cr 

v. ) Waiver of trial 

 ) by jury 

 ) 

[Defendant] ) 

I acknowledge that I was fully informed of my right to trial by jury in this 

cause. I hereby waive that right, request the court to try all issues of fact and 

law without a jury, and waive my right to special findings. 

Dated at , this day of , 20 . 

Defendant 

APPROVED: 

Attorney for Defendant 

The United States of America consents to the defendant’s waiver of a jury 

trial and waives its right to request special findings. 

Assistant U.S. Attorney 

I find that the defendant has knowingly and voluntarily waived the right to a 

jury trial, and I approve the waiver. 

Judge 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 37

1.10 Speedy Trial Act 

18 U.S.C. §§ 3161–3166

Title I of the Speedy Trial Act of 1974 (18 U.S.C. § 3161) imposes time limits 

within which criminal defendants must be brought to trial. The time limits 

are expressed as numbers of days from certain events, but the statute provides that certain periods of time be “excluded” in computing these limits, 

thereby extending the deadlines. The statute applies to offenses other than 

petty offenses.1

 This section is offered as a general guide to the time limits 

and exceptions in the Speedy Trial Act. Judges should be aware that circuit 

law may differ on specific issues. 

 Judges should also be aware of the possible effect of the Crime Victims’ 

Rights Act. Any victims of the offense have the right to be notified by the 

government of, and not be excluded from, any public proceeding. They also 

have a right to “proceedings free from unreasonable delay,” which may 

need to be considered if exceptions to the Speedy Trial Act’s time limits are 

requested. See 18 U.S.C. § 3771(a)(2), (3), and (7). 

Dismissal 

Failure to comply with the time limits generally requires that a cause be dismissed, although not necessarily with prejudice. In deciding whether to 

dismiss with or without prejudice, the court should consider the seriousness 

of the offense, the facts and circumstances that led to the dismissal, and the 

impact of a reprosecution on the administration of the Speedy Trial Act and 

the administration of justice. See 18 U.S.C. § 3162(a)(1) and (2). If the defendant may be released, victims should be given an “opportunity to be reasonably heard” at any public proceeding on the issue. 18 U.S.C. 

§ 3771(a)(4). 

Waiver by defendant 

Although a defendant’s failure to make a timely motion for dismissal on 

speedy trial grounds is deemed a waiver of the right to dismissal,2 courts 

should not rely solely on defendants’ agreements to delay their trials beyond the statutory time limits. As the Supreme Court concluded, 

§ 3161(h) has no provision excluding periods of delay during which a defendant waives the application of the Act, and it is apparent from the terms of the 

 

 1. “Petty offense” means an offense that is punishable by imprisonment of six months or 

less and for which the maximum fine (including any “alternative fine” under 18 U.S.C. 

§ 3571(d)) is no more than $5,000 for individuals or $10,000 for organizations. 18 U.S.C. 

§§ 19 and 3581. 

 2. See 18 U.S.C. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial 

or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”). 
Section 1.10: Speedy Trial Act 

38 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Act that this omission was a considered one. Instead of simply allowing defendants to opt out of the Act, the Act demands that defense continuance requests 

fit within one of the specific exclusions set out in subsection (h). 

Zedner v. United States, 126 S. Ct. 1976, 1985–87 (2006) (holding that “a defendant may not prospectively waive the application of the Act” and that 

“petitioner’s waiver ‘for all time’ was ineffective”). 

Basic time limits 

Indictment or information 

An indictment or information must be filed within thirty days after arrest or 

service of a summons. However, if a defendant is charged with a felony in a 

district in which no grand jury has been in session during the thirty-day period, the time for filing an indictment shall be extended an additional thirty 

days. See 18 U.S.C. § 3161(b). If an indictment or information is dismissed or 

otherwise dropped and if charges based on or arising from the same conduct 

are later refiled, “the provisions of subsections (b) and (c) of this section 

shall be applicable with respect to such subsequent complaint, indictment, 

or information.” 18 U.S.C. § 3161(d)(1). 

Trial 

A trial must commence within seventy days after the later of (a) the date of 

the indictment or information or (b) the date of the defendant’s initial appearance before a judicial officer in the district in which charges were 

brought. See 18 U.S.C. § 3161(c). In some circumstances, the deadline for 

trial on a superseding indictment relates back to the original indictment. 

Trial, defendant in custody 

A trial of a defendant held in pretrial detention must also commence within 

ninety days of the beginning of continuous custody. This deadline may in 

some cases be earlier than the seventy-day deadline referred to above. See 

18 U.S.C. § 3164(b). The sanction is release from custody rather than dismissal of the case. See 18 U.S.C. § 3164(c). If the defendant’s release involves a “public hearing,” a victim has the right to be heard. See 18 U.S.C. 

§ 3771(a)(4). 

Retrial 

A retrial following a mistrial or order for a new trial must commence within 

seventy days after the date the action occasioning the retrial becomes final. 

18 U.S.C. § 3161(e). Retrial following a dismissal by the trial court and reinstatement after appeal, or following an appeal or collateral attack, must also 

commence within seventy days, but an extension of up to 180 days may be 

allowed if trial within seventy days is impractical. 18 U.S.C. § 3161(d) and 

(e). 
Section 1.10: Speedy Trial Act 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 39

Trial commencement limitations 

The Act requires that the trial date be determined at the earliest practicable 

time, after consultation with counsel. See 18 U.S.C. § 3161(a). A trial may not 

commence less than thirty days after the defendant first appears through 

counsel or expressly waives counsel and elects to proceed pro se, unless the 

defendant consents in writing. See 18 U.S.C. § 3161(c)(2). 

Excludable periods 

There are several periods of delay that “shall be excluded” from the time 

limits for filing an indictment or information or for commencing trial. See 18 

U.S.C. § 3161(h)(1)–(8). Among these are periods of delay resulting “from 

other proceedings concerning the defendant,”3

 “from the absence or unavailability of the defendant or an essential witness,” and “from the fact that 

the defendant is mentally incompetent or physically unable to stand trial.” 

 A period of delay resulting from the granting of a continuance may also 

be excluded if the continuance was granted on the basis of a finding that 

“the ends of justice served by taking such action outweigh the best interest 

of the public and the defendant in a speedy trial.” The court must put on the 

record, “either orally or in writing, its reasons for [that] finding.”4

 See 18 

U.S.C. § 3161(h)(7)(A) & (B) (listing some of the factors a judge should consider in determining whether to grant a continuance).5

 The Supreme Court 

held that “if a judge fails to make the requisite findings regarding the need 

for an ends-of-justice continuance, the delay resulting from the continuance 

 

 3. Section 3161(h)(1)(D) excludes periods of “delay resulting from any pretrial motion, 

from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” However, the Supreme Court has held that any time granted to 

prepare such motions is not automatically excluded, and is only excludable if, following 

§ 3161(h)(7), “the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh 

the best interests of the public and the defendant in a speedy trial.” Bloate v. United States, 

130 S. Ct. 1345, 1351–58 (2010). Note that once a motion is actually filed, it falls within subsection (D) “irrespective of whether it actually causes, or is expected to cause, delay in starting a trial.” United States v. Tinklenberg, 131 S. Ct. 2007, 2011 (2011). 

 4. Consider asking the U.S. attorney to prepare the form of the order. 

 5. See e.g., United States v. Sutcliffe, 505 F.3d 944, 956–57 (9th Cir. 2007) (“ends of justice” 

continuance properly granted “to allow [newly] appointed defense counsel time to prepare 

for trial given the complexity of the case, the large amount of electronic evidence, and the 

repeated changes in Defendant’s representation”); United States v. Gardner, 488 F.3d 700, 

718–19 (6th Cir. 2007) (same, where three codefendants all requested extra time to reconcile 

trial dates and prepare for trial); United States v. Apperson, 441 F.3d 1162, 1183–84 (10th 

Cir. 2006) (same, for medical problems of defendant’s attorney); United States v. Ruth, 65 

F.3d 599, 606 (7th Cir. 1995) (same, for delay caused by defendant’s refusal to provide handwriting exemplars); United States v. Drapeau, 978 F.2d 1072, 1072–73 (8th Cir. 1992) (same, 

to allow time for DNA test that would either exculpate or inculpate defendant); United States 

v. Sarro, 742 F.2d 1286, 1300 (11th Cir. 1984) (same, where one codefendant’s attorney had 

other trial scheduled at same time and another codefendant’s brother had recently died).
Section 1.10: Speedy Trial Act 

40 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed. . . . [W]e leave it to the District 

Court to determine in the first instance whether dismissal should be with or 

without prejudice.”6 Zedner v. United States, 547 U.S. 489, 507–09 (2006) (the 

Court added that “at the very least the Act implies that those findings must 

be put on the record by the time a district court rules on a defendant’s motion to dismiss under § 3162(a)(2)”). 

 Note that a continuance under this section may not be granted “because 

of general congestion of the court’s calendar, or lack of diligent preparation 

or failure to obtain available witnesses on the part of the attorney for the 

Government.” 18 U.S.C. § 3161(h)(7)(C). The right of crime victims to “proceedings free from unreasonable delay” may also have to be considered. See 

18 U.S.C. § 3771(a)(7). 

Other aids to interpretation 

The speedy trial plan adopted by each district court pursuant to 18 U.S.C. 

§§ 3165, 3166 

Administrative Office of the U.S. Courts, 1 Clerks Manual: United States District Courts § 8.08 (1993) 

Judicial Conference Committee on the Administration of the Criminal Law, 

Guidelines to the Administration of the Speedy Trial Act of 1974 (rev. ed. 

October 1984), 106 F.R.D. 271 (1984) 

Other FJC sources 

Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 

1974 (1980) 

 

 6. See § 3162(a)(2) (“In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of 

the offense; the facts and circumstances of the case which led to the dismissal; and the impact 

of a reprosecution on the administration of this chapter and on the administration of justice.”). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 41

1.11 Delinquency proceedings 

18 U.S.C. §§ 5031 et seq. 

A. Proceeding as an adult or a juvenile 

1. Jurisdiction 

(a) The district court has jurisdiction over a juvenile who is alleged to 

have committed a violation of law in the court’s special maritime 

and territorial jurisdiction for which the maximum authorized 

term of imprisonment is six months or less. 

(b) In other cases, the district court has jurisdiction only if the Attorney General, after investigation, certifies one of the following: 

(i) that a juvenile court or other appropriate state court does not 

have jurisdiction or refuses to assume jurisdiction over a juvenile with respect to the alleged act of juvenile delinquency; 

(ii) that the state does not have available programs and services 

adequate for the needs of juveniles; or 

(iii) that the offense charged is a crime of violence that is a felony, or is an offense described in certain sections of title 21, 

and that there is a substantial federal interest in the case or 

the offense. 

 If jurisdiction is not established under paragraph (a) or (b) above, the 

juvenile must be surrendered to appropriate state authorities. If jurisdiction is established, the prosecution proceeds by information or 

by violation notice or complaint under 18 U.S.C. § 3401(g). See 18 

U.S.C. § 5032. See also the Calendar of Events at the end of this section. 

2. Preliminary procedures 

(a) Clear the courtroom of all persons except those associated with 

the case. Close the outside and inside doors and instruct the marshal not to open them during the proceedings. 

(b) Take the appearances of counsel. 

(c) Explain to the parties that the hearing will be divided into two 

parts as follows: 

(i) the court determines if the juvenile should proceed as an 

adult or a juvenile; 

(ii) the juvenile admits or denies the charges against him or her 

(see infra subsection B of this section). 

(d) Ensure that the juvenile can speak and understand English and 

that defense counsel has been able to communicate with the juvenile in English. If there is any doubt about the juvenile’s ability 
Section 1.11: Delinquency proceedings 

42 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

to understand English, use a certified interpreter. See 28 U.S.C. 

§ 1827.

3. Explain the rights of an adult: 

(a) to an initial appearance before the magistrate judge; 

(b) to counsel; 

(c) to a bail hearing; 

(d) to an indictment, if applicable; 

(e) to a preliminary examination to determine probable cause if the 

defendant is not indicted; and 

(f) to a trial by jury (explain composition of jury) in which the government will have to prove that the defendant is guilty beyond a 

reasonable doubt and in which the defendant has the right 

(i) to confront and cross-examine witnesses; and 

(ii) to remain silent, testify, or call witnesses. 

4. Explain the rights of a juvenile: 

(a) to an initial appearance before the magistrate judge; 

(b) to counsel; 

(c) to an information, violation notice, or complaint, as opposed to an 

indictment by grand jury;1

(d) to a hearing before the court to determine delinquency,2

 during 

which the defendant has the right 

(i) to confront and cross-examine witnesses;3

(ii) to remain silent, testify, or call witnesses;4

 and 

(iii) to have the government prove guilt beyond a reasonable 

doubt;5

and 

(e) to have his or her name and picture withheld from the media.6

 

 1. 18 U.S.C. § 5032; United States v. Hill, 538 F.2d 1072 (4th Cir. 1976). 

 2. McKeiver v. Pennsylvania, 403 U.S. 528 (1971); United States v. Hill, 538 F.2d 1072 

(4th Cir. 1976). 

 3. In re Gault, 387 U.S. 1 (1967); United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968). 

 4. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976); West 

v. United States, 399 F.2d 467 (5th Cir. 1968) (factors in deciding if juvenile has waived privilege against self-incrimination. 

 5. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976); 

United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968). 

 6. 18 U.S.C. § 5038(e). 
Section 1.11: Delinquency proceedings 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 43

5. Election to proceed as an adult or a juvenile 

(a) Explain the maximum penalties under the applicable statute if 

the juvenile elects to proceed as an adult. 

(b) Explain the disposition under the Federal Juvenile Delinquency 

Act (FJDA), which gives the court the following options: 

(i) to suspend the findings of delinquency; 

(ii) to require that the juvenile make restitution to the victim(s) 

of the delinquent conduct; 

(iii) to place the juvenile on probation; or 

(iv) to commit the juvenile to official detention. 

18 U.S.C. § 5037(a) 

(c) Explain that if the juvenile elects to proceed as an adult, 

(i) the request must be in writing and upon the advice of counsel.7

(ii) the juvenile may plead not guilty and force the government 

to trial by jury under an indictment, if applicable. 

(iii) the juvenile may plead guilty and forgo trial. 

(d) Explain that if the juvenile elects to proceed as a juvenile, 

(i) the request may be oral. 

(ii) the juvenile may deny the charges against him or her and 

force the government to try the case before the judge. 

(iii) the juvenile may admit the charges filed in the information, 

violation notice, or complaint, forgoing trial. 

(e) Ask counsel 

(i) if proceeding as a juvenile is in the individual’s best interests; and 

(ii) if family members present in the courtroom have discussed 

the individual’s election with counsel. 

(f) Ask the juvenile: 

Do you elect to proceed as an adult or as a juvenile? 

(i) If the juvenile elects to proceed as an adult, proceed to arraignment as an adult (see infra section 2.01: Taking pleas of 

guilty or nolo contendere). 

(ii) If the juvenile elects to proceed as a juvenile, proceed to arraignment of a juvenile (see infra subsection B of this section). 

 

 7. 18 U.S.C. § 5032.
Section 1.11: Delinquency proceedings 

44 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

6. Motion by Attorney General to proceed against the juvenile as an 

adult 

(a) The Attorney General may make a motion to transfer the juvenile 

to adult prosecution if the juvenile 

(i) committed an act that if committed by an adult would be a 

felony that is a crime of violence or a specified drug offense 

from title 21; and 

(ii) committed the act after his or her fifteenth birthday. 

(b) The court may grant the motion if, after a hearing and after considering and making findings in the record on the factors listed in 

the statute, it finds that the transfer would be “in the interest of 

justice.” 

(c) The age limit for committing the act is lowered to after the thirteenth birthday for certain crimes of violence or if the juvenile 

possessed a firearm during the offense. 

(d) Reasonable notice of a transfer hearing must be given to the juvenile; the juvenile’s parents, guardian, or custodian; and counsel. The juvenile shall be assisted by counsel, and any statements 

the juvenile makes before or during the transfer hearing are not 

admissible at subsequent criminal prosecutions. 

 See 18 U.S.C. § 5032.

7. Mandatory proceeding as an adult 

The juvenile shall be transferred to district court for prosecution as 

an adult if the juvenile 

(a) committed an act after his or her sixteenth birthday that if committed by an adult would be a felony offense that is a crime of violence, or a drug offense or other serious crime as described in the 

statute; and 

(b) has been previously found guilty of an act that if committed by 

an adult would have been one of the offenses described above or 

in paragraph 6 above, or found guilty of a violation of a state felony statute that would have been such an offense if committed 

under federal jurisdiction. 

See 18 U.S.C. § 5032.

B. Arraignment of a juvenile 

1. Administer oath and make sure the juvenile understands that to lie 

under oath is to commit the crime of perjury. 

2. Direct the U.S. attorney to read the charge(s) against the juvenile. 

(a) The charge(s) must 

(i) reflect that the individual committed an act of juvenile delinquency; 
Section 1.11: Delinquency proceedings 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 45

(ii) cite the statute allegedly violated; and 

(iii) cite 18 U.S.C. § 5032.

(b) The court should direct the following questions to the juvenile: 

(1) Have you been given a copy of the charge(s)? 

(2) Have you talked to counsel about the charge(s) filed 

against you? 

 [Explain the charge(s) and inquire:] 

(3) Do you understand the charge(s) against you? 

 [Explain the penalty and inquire:] 

(4) Do you understand the maximum penalty that could be 

assessed against you if you are found guilty of the 

charge(s)? 

(5) Do you understand that you are entitled to have counsel 

present with you at all times during these proceedings? 

(6) Are you satisfied with your representation (counsel)? 

(7) Do you understand that you have a right to deny the 

charge(s) that has (have) just been read? 

(8) Do you understand that if you deny the charge(s), the government will have to bring witnesses that your counsel can 

cross-examine, and the government will have to convince 

the court beyond a reasonable doubt 

(a) that you committed the crime with which you have 

been charged; and 

(b) that you committed this crime before you reached the 

age of eighteen? 

3. Read the elements of the offense that the government will have to 

prove. 

4. Determine the competence of the juvenile to understand the proceedings and to enter an admission or denial. 

(a) The court should ask the following questions: 

(1) Have you taken any drugs, medicines, or pills or drunk any alcoholic beverages in the past twenty-four hours? 

(2) Do you understand what is happening today? 
Section 1.11: Delinquency proceedings 

46 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(b) The court should also ask the juvenile’s counsel and the prosecutor this question: 

 Do either of you have any doubt as to the juvenile’s competence to admit or deny the charge(s) against him [her] at this 

time? 

(c) If, after further interrogation of the juvenile and counsel, there is 

any question of the juvenile’s understanding of the proceedings 

and of his or her competence to plead, continue the taking of the 

admission or denial to a later date. 

5. Determine the juvenile’s awareness of the consequences of an admission. Ask: 

(a) Are you aware that, if you admit the charge(s) against you, 

you are giving up your right: 

(1) to trial by the court? 

(2) to confront and cross-examine witnesses? 

(3) to remain silent, testify, and call witnesses? 

(4) to require the government to prove guilt beyond a reasonable doubt? 

(b) Are you aware that if you admit the charge(s) against you, you 

will lose the right to elect to proceed as an adult with the following rights:8

(1) to an indictment, if applicable? 

(2) to a trial by jury? 

 [See supra subsection A.3(f) of this section.] 

6. Explain to the juvenile that if he or she admits to the act with which 

he or she has been charged, the government will then tell the court 

what it believes the facts to be and what it could prove if the case 

were to go to trial. Next, explain that the court would then ask the juvenile 

(a) if what the government says is true as far as he or she knows; 

(b) if any part of what the government says is not true, and if so, what 

is not true; 

(c) if he or she believes that the government can prove what it says it 

can prove; and 

(d) if he or she committed [here, go through the elements of the offense]. 

 

 8. Cf. United States v. Doe, 627 F.2d 181 (9th Cir. 1980) (discussing timing requirement 

for making request to proceed as an adult). 
Section 1.11: Delinquency proceedings 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 47

7. Determine the voluntariness of the admission: 

 The court must be satisfied that if the juvenile admits to the 

charge(s) against him or her, this admission is voluntary and not the 

result of any force or threat or inducement. Suggested questions to 

ask the juvenile include the following: 

(a) Has anyone threatened you or anyone else or forced you in any 

way to admit to the charge(s)? 

[If the answer is yes, ascertain the facts and recess if necessary to permit the juvenile and his or her counsel to confer, or 

postpone taking the admission.] 

(b) Do you understand that no one can compel you to admit 

anything? 

8. Take the admission or denial. Ask the juvenile: 

Do you admit or deny that you are a juvenile delinquent as 

charged in the information? 

(a) If the juvenile denies the charge(s), set the case for trial. 

(b) If the juvenile admits to the charge(s): 

(1) Ask the U.S. attorney to state what he or she can prove at 

trial. 

(2) Ask the juvenile the following questions: 

(a) So far as you know, is what the government says true? 

(b) Is any part of what the government says not true, and if so, 

what is not true? 

(c) Do you believe that the government can prove what 

it says it can prove? 

(d) Did you [here, go through the elements of the offense]? 

(3) Ask counsel for the juvenile if counsel is satisfied that 

the government can prove what it says it can prove. 

9. Make findings for the record: 

(a) Find that all laws (18 U.S.C. § 5031 et seq.) have been 

complied with and that a basis for federal jurisdiction exists (see 

supra subsection A.1 of this section). 

(b) Find that the juvenile is competent. 

(c) Find that the juvenile understands his or her rights and has 

elected to give them up, except the right to counsel. 

(d) Find that the juvenile has voluntarily admitted to the charge(s) 

against him or her after fully knowing and understanding his or 

her constitutional rights as a juvenile. 

NOTE

Consider asking the 

juvenile to tell, in his 

or her own words, 

what he or she did.
Section 1.11: Delinquency proceedings 

48 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(e) Find that the juvenile is aware of the maximum penalty that 

could be imposed against him or her. 

(f) Find that the juvenile is aware that the government has sufficient 

facts to support an adjudication of juvenile delinquency. 

(g) Ask the juvenile if he or she wants to change his or her mind and 

not proceed as a juvenile or not admit to the charge(s) against 

him or her. 

(h) Adjudge that the juvenile is a juvenile delinquent. 

10. Inform the juvenile and his or her parents or guardian, in writing, of 

the juvenile’s rights relating to the confidentiality of juvenile records.9

C. Disposition (18 U.S.C. § 5037)10

1. Detention prior to disposition (18 U.S.C. § 5035)

(a) A juvenile alleged to be delinquent may be detained only in a juvenile facility or other suitable place designated by the Attorney 

General. 

(b) Detention shall be in a foster home or community-based facility 

located in or near the juvenile’s home community whenever possible. 

(c) The juvenile shall not be detained or confined in any institution 

in which he or she would have regular contact with adults convicted of crimes or awaiting trial on criminal charges. Also, insofar 

as possible, alleged delinquents shall be kept separate from adjudicated delinquents. 

(d) Every juvenile in custody should be provided with adequate 

food, heat, light, sanitary facilities, bedding, clothing, recreation, 

education, and medical care, including necessary psychiatric, 

psychological, or other care and treatment.

2. Timing of hearing (18 U.S.C. § 5037(a)) 

 If the juvenile is adjudicated to be delinquent, the court must have a 

hearing disposing of the case within twenty court days after said adjudication unless the court has ordered further studies in accordance 

with 18 U.S.C. § 5037(d). (See infra paragraph C.5 of this section.) 

3. Judgment following disposition hearing 

 After the disposition hearing, the court may 

(a) suspend the findings of delinquency; 

 

 9. 18 U.S.C. § 5038(b). See 18 U.S.C. § 5038(a), (c), (d), and (f) for authority to release juvenile records. 

10. The following outline is not intended as a procedure for conducting a dispositional 

hearing, but as supplemental material to be used in setting the dispositional hearing. 
Section 1.11: Delinquency proceedings 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 49

(b) require the juvenile to make restitution pursuant to 18 U.S.C. 

§ 3556;

(c) place the juvenile on probation; or 

(d) commit the juvenile to official detention in the custody of the Attorney General. 

4. Sentence 

 A juvenile may not be placed on probation or committed for a term 

longer than the maximum probation or prison term that would have 

been authorized had the juvenile been sentenced as an adult under 

the Sentencing Guidelines. United States v. R.L.C., 112 S. Ct. 1329, 

1339 (1992). Subject to that limitation, the maximum terms applicable are as follows: 

(a) For a juvenile under eighteen at the time of disposition, neither 

the probation term nor the detention term may extend beyond 

the juvenile’s twenty-first birthday. 18 U.S.C. § 5037(b)(1), (c)(1). 

(b) For a juvenile between eighteen and twenty-one at the time of 

disposition, the probation term may not exceed three years. 18 

U.S.C. § 5037(b)(2). The detention term may not exceed five 

years if the act of delinquency was a Class A, B, or C felony; it may 

not exceed three years in other cases. 18 U.S.C. § 5037(c)(2). 

5. Observation and study (§ 5037(d)) 

 An alleged or adjudicated delinquent may be committed, after notice 

and a hearing at which the juvenile is represented by counsel, to the 

custody of the Attorney General for observation and study by an appropriate agency. This observation and study shall be conducted on 

an outpatient basis unless the court determines that inpatient observation and study are necessary to obtain the desired information. 

If the juvenile is only an alleged juvenile delinquent, inpatient study 

may be ordered only with the consent of the juvenile and his or her 

attorney. The agency shall make a complete study of the alleged or 

adjudicated delinquent to ascertain his or her personal traits, capabilities, and background; any previous delinquency or criminal experience; any mental or physical defects; and any other relevant factors. 

 The Attorney General must submit a report on the observation 

and study to the court and “to the attorneys for the juvenile and the 

government” within thirty days after commitment unless the court 

grants additional time. 
Section 1.11: Delinquency proceedings 

50 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Calendar of events 

Juvenile in custody 

The juvenile must be brought to trial within thirty days from the date detention was begun. 18 U.S.C. § 5036.

 The dispositional hearing must occur within twenty court days after a juvenile is adjudicated delinquent. 18 U.S.C. § 5037(a). 

Juvenile not in custody 

The juvenile must be tried within seventy days from the date of filing of the 

charging information or from the date the juvenile appeared before a judicial officer of the court in which such charge is pending, whichever date occurs last. 18 U.S.C. §§ 3161 et seq.11

 The dispositional hearing must occur within twenty court days after a juvenile is adjudicated delinquent. 18 U.S.C. § 5037(a). 

 

11. But see Model Statement of the Time Limits and Procedures for Achieving Prompt 

Disposition of Criminal Cases (Committee on the Administration of the Criminal Law of the 

Judicial Conference of the United States) (1979) (except as specifically provided, the time 

limits are not applicable to proceedings under the FJDA). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 51

1.12 Mental competency in criminal matters 

18 U.S.C. §§ 4241–4248; Fed. R. Crim. P. 12.2 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. 

It may be advisable to ask the prosecutor if there are any victims and, if so, 

whether the government has fulfilled its duty to notify them.] 

The mental competency of a the defendant may come before the court in a 

number of different contexts. The most important are 

• competency to stand trial; 

• competency to plead guilty; 

• competency to commit the crime with which the defendant is 

charged (e.g., ability to form the requisite intent); 

• competency after acquittal by reason of insanity; 

• competency to be sentenced; 

• mental condition as it bears on the sentence to be imposed; and 

• civil commitment of a convicted offender in need of care or treatment 

for a mental condition. 

 The Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241–4248, is now 

controlling with respect to most situations involving the mental competency 

of a defendant. It is a complex enactment, the provisions of which are 

spelled out in great detail. Its provisions must be read with care and complied with meticulously. 

A. Competency to stand trial (18 U.S.C. § 4241)

1. Section 4241(a) provides that after the commencement of a prosecution and prior to sentencing, either the U.S. attorney or defense 

counsel may move for a hearing to determine the defendant’s mental competency. The court shall grant the motion, or shall order a 

hearing on its own motion, if there is reasonable cause to believe that 

the defendant is not mentally competent 

(a) to understand the nature and consequences of the proceedings 

against him or her; or 

(b) to assist properly in his or her defense. 

2. Prior to the hearing the court may (and probably should) order that a 

psychiatric or psychological examination be conducted and that a report be filed with the court. 18 U.S.C. § 4241(b). 

(a) The examiner should be asked for his or her opinion as to whether 

the defendant is suffering from a mental disease or defect ren-
Section 1.12: Mental competency in criminal matters 

52 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

dering the defendant mentally incompetent to understand the 

nature and consequences of the proceedings against him or her 

or to assist properly in his or her defense. The examiner’s report 

must include all of the information required by 18 U.S.C. 

§ 4247(c)(1) through (c)(4). 

(b) The psychiatrist or psychologist should not be asked to determine the defendant’s mental competency at the time the alleged 

offense was committed. 

(c) To secure a § 4241 examination, the court may, if necessary, order 

the defendant committed to a suitable hospital or facility for a 

reasonable period not to exceed thirty days, even if the defendant is not otherwise confined. For just cause this commitment 

may be extended by fifteen days. 18 U.S.C. § 4247(b). 

3. The court shall then hold an evidentiary hearing, to be conducted 

pursuant to the provisions of 18 U.S.C. § 4247(d). The defendant 

“shall be represented by counsel.” Id.

4. At the conclusion of the evidentiary hearing, the court shall make a 

finding by a preponderance of the evidence as to the accused’s mental competency to stand trial. 18 U.S.C. § 4241(d). 

(a) A finding of mental competency to stand trial does not prejudice 

a plea of not guilty by reason of insanity, because the court’s finding is not admissible in evidence on the issue of guilt or innocence. 18 U.S.C. § 4241(f). 

(b) If the defendant is found to be incompetent to stand trial, the 

court shall commit the defendant to the custody of the Attorney 

General. 18 U.S.C. § 4241(d). The trial court should receive periodic reports as to the defendant’s mental condition. 

(c) The Attorney General shall hospitalize the defendant for a reasonable period not to exceed four months, to determine whether 

there is a substantial probability that the defendant will in the 

foreseeable future become competent to stand trial. 18 U.S.C. 

§ 4241(d)(l). 

(d) The Attorney General may hospitalize the defendant for an additional reasonable period of time if the court finds that within that 

additional period there is a substantial probability that the defendant will become competent to stand trial. 18 U.S.C. 

§ 4241(d)(2). 

(e) If, at the end of the time provided for by 18 U.S.C. § 4241(d), the 

defendant is still not competent to be tried, he or she is subject to 

further commitment under the provisions of § 4246 if the court 

finds by clear and convincing evidence that releasing the defendant would create a substantial risk of bodily injury to another or 
Section 1.12: Mental competency in criminal matters 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 53

of serious damage to another’s property. The provisions of § 4246 

are detailed and complex. To avoid error the court must refer to 

those provisions and follow them with great care. The report of 

any § 4246 psychiatric or psychological examination must comply 

with the requirements of § 4247(c). Any hearing must be held 

pursuant to the provisions of § 4247(d). 

(f) When the director of the facility certifies to the court that the defendant is competent to stand trial, the court must hold a hearing, conducted pursuant to the requirements of 18 U.S.C. 

§ 4247(d). If the court determines that the defendant is competent to stand trial, it shall order the defendant’s discharge from 

the facility and set the matter for trial. 18 U.S.C. § 4241(e). 

B. Competency to plead guilty 

 Because a defendant is required to make a knowing and voluntary 

waiver of certain constitutional rights in entering a guilty plea, the court 

must, in accepting a Fed. R. Crim. P. 11 plea, be satisfied that the defendant has sufficient mental competency to waive those rights, to make a 

reasoned choice among the alternatives presented to him or her, and to 

understand the nature and consequences of the guilty plea (see the plea 

colloquy in infra section 2.01: Taking pleas of guilty or nolo contendere). 

 If there is any question as to the defendant’s mental competency to 

enter a guilty plea, an 18 U.S.C. § 4241 examination should be ordered 

and a hearing held prior to acceptance of the plea. In requesting such an 

examination, the court should spell out for the examiner the criteria that 

the examiner is to apply in determining whether the defendant is competent to enter a guilty plea. The examiner should be requested to furnish the information required by § 4247(c), along with an opinion as to 

the defendant’s competency to enter a guilty plea. 

C. Competency to commit the crime with which the defendant is charged 

(Fed. R. Crim. P. 12.2; 18 U.S.C. §§ 17, 4242): 

1. If the defendant intends to rely on the insanity defense or to introduce expert testimony relating to his or her mental condition, the defendant must notify the government attorney in writing of that intention within the time provided for filing pretrial motions or at a 

later time if so ordered by the court. The court may allow late filing of 

the notice if good cause is shown. Fed. R. Crim. P. 12.2(a) and (b). 

2. The court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241. If the defendant has provided notice of a defense of insanity under Fed. R. Crim. P. 12(a), the court 

must order an examination under 18 U.S.C. § 4242 upon motion of 

the government. If the defendant provides notice of an intent to introduce expert evidence relating to the defendant’s mental condition 
Section 1.12: Mental competency in criminal matters 

54 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

under Fed. R. Crim. P. 12(b), the court may, upon motion of the government, order the defendant examined under procedures ordered 

by the court. Fed. R. Crim. P. 12.2(c)(1). 

 The examiner should be asked to give his or her opinion as 

to whether, at the time of the acts constituting the offense, the 

defendant was unable to appreciate the nature and quality or 

the wrongfulness of his or her acts as a result of a severe mental 

disease or defect. See 18 U.S.C. § 17(a). The examiner should 

be requested to include in his or her report all of the information required by § 4247(c). 

3. The defendant bears the burden of proving the defense of insanity by clear and convincing evidence. 18 U.S.C. § 17(b). 

4. No statement made by the defendant during a court-ordered 

mental examination (whether the examination was with or 

without the defendant’s consent), no testimony by the expert 

based on that statement, and no fruit of that statement may be 

admitted against the defendant in any criminal proceeding except with regard to an issue concerning mental condition on 

which the defendant has introduced testimony or, in a capital 

sentencing proceeding, has introduced expert evidence. Fed. 

R. Crim. P. 12.2(b)(2) and (c)(4). 

5. Results and reports of any examination conducted for a capital sentencing hearing after notice under Fed. R. Crim. P. 12.2(b)(2) must be 

sealed and not disclosed to either party unless the defendant is 

found guilty of a capital crime and intends to offer at sentencing expert evidence on mental condition. Once the results and reports of 

the government’s examination have been disclosed, the defendant 

must disclose to the government the results and reports of any examination on mental condition conducted by the defendant’s expert 

about which the defendant intends to introduce expert evidence. 

Fed. R. Crim. P. 12.2(c)(2) and (3). 

6. If the defendant fails to provide timely notice to the government attorney of his or her intent to introduce expert testimony relating to an 

insanity defense, or if he or she fails to submit to an examination, the 

court may exclude the testimony of any expert witness offered by the 

defendant on the issue of the defendant’s mental condition at the 

time of the alleged criminal offense or on the issue of punishment in 

a capital case. Fed. R. Crim. P. 12.2(d). 

D. Competency after acquittal by reason of insanity (18 U.S.C. § 4243)

If a defendant is found not guilty only by reason of insanity, he or she 

shall be committed to a suitable facility until such time as he or she is eligible for release under 18 U.S.C. § 4243(f). The provisions of § 4243(e) relating to the confinement and release of a defendant acquitted by reaNOTE

Serious due process 

and compulsory process issues may arise if 

the court excludes expert testimony concerning an insanity 

defense when a continuance of the trial 

would be feasible. 

See Taliaferro v. 

Maryland, 456 A.2d 29, 

cert. denied, 461 U.S. 

948 (1983) (White, J., 

dissenting).
Section 1.12: Mental competency in criminal matters 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 55

son of insanity are detailed and complex. Those provisions must be followed with meticulous care. Any hearing must comply with the provisions of § 4247(d). Any report of a psychiatric or psychological examination must comply with the requirements of § 4247(c). 

E. Competency to be sentenced 

Because the defendant has the right of allocution at sentencing and 

must be able to understand the nature of the proceedings, the defendant cannot be sentenced if he or she does not have the mental capacity 

to exercise the right of allocution or to understand the nature of the proceedings. 

 If there is any question as to the defendant’s mental competency to 

be sentenced, an 18 U.S.C. § 4241 examination should be ordered and a 

hearing held before sentencing. The court should provide the examiner 

with the criteria the examiner is to apply in determining whether the defendant is competent to be sentenced. The court should request the examiner to include in his or her report all of the information required by 

§ 4247(c). Any hearing must be held pursuant to the requirements of 

§ 4247(d). 

F. Mental condition as it bears on sentence imposed 

l. Adult offenders (18 U.S.C. § 3552(b))1

(a) If the court determines that it needs more detailed information 

about the defendant’s mental condition as a basis for determining the sentence to be imposed, the court may order a study of 

the defendant. 

(b) The study should be conducted by a qualified consultant in the 

local community, unless the court finds that there is a compelling 

reason to have the study done by the Bureau of Prisons or that 

there are no adequate professional resources in the local community to perform the study. 

(i) If the study is to be done in the local community, the court 

should designate a consultant, usually a psychiatrist or psychologist, to conduct the study and order the defendant to 

submit to the examination. The probation office will assist in 

identifying people who are qualified and willing to perform 

such studies; the probation office can also provide funds for 

this purpose. 

(ii) If the study is to be done by the Bureau of Prisons, the defendant should be committed under 18 U.S.C. § 3552(b) to 

 

 1. Subsections (b) and (c) of § 3552 both authorize studies in aid of sentencing. Subsection (c) specifically authorizes a psychiatric or psychological exam, but it appears preferable 

to rely on the more flexible general authority of § 3552(b). 
Section 1.12: Mental competency in criminal matters 

56 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

the custody of the bureau to be studied. Imposing a provisional sentence is not necessary. 

(c) The court order should specify the additional information the 

court needs before determining the sentence to be imposed and 

should inform the examiner of any guideline or policy statement 

that should be addressed by the study. 

(d) The court order should specify a period for the study, not to exceed sixty days. The period may be extended, at the discretion of 

the court, for up to sixty more days.2

(e) To minimize delay if the study is to be done by the Bureau of 

Prisons, the court should consider directing the probation officer 

to secure immediate designation of the institution at which the 

study will be performed, and directing the marshal to transport 

the defendant to that institution by the most expeditious means 

available. 

(f) After receiving the report of the study, the court should proceed 

to sentencing. The report must be included in the presentence 

report. See Fed. R. Crim. P. 32(d)(2)(E). 

(g) See also U.S.S.G. §§ 5H1.3 and 5K2.13, which delineate the extent 

to which a defendant’s mental or emotional condition may be 

taken into account under the Sentencing Guidelines. 

2. Juvenile offenders (18 U.S.C. § 5037(d)) 

(a) If the court determines that it needs additional information concerning an alleged or adjudicated juvenile delinquent’s mental 

condition, the court may commit the juvenile to the Attorney 

General’s custody for observation and study after notice and a 

hearing at which the juvenile is represented by counsel. 

(b) The observation and study of the juvenile must be performed on 

an outpatient basis, unless the court determines that inpatient 

observation is necessary to obtain the desired information. If the 

juvenile has not been adjudicated delinquent, inpatient study 

can be ordered only with the consent of the juvenile and his or 

her attorney. 

(c) The agency selected by the Attorney General shall make a complete study of the juvenile’s mental health. 

(d) The Attorney General shall submit to the court and to the juvenile’s attorney the results of the study. That report shall be submitted within thirty days of the juvenile’s commitment, unless 

the time for reporting is extended by the court. 

 

 2. A court may also have to consider that, if there are victims of the offense, they have a 

right “to proceedings free from unreasonable delay.” 18 U.S.C. § 3771(a)(7). 
Section 1.12: Mental competency in criminal matters 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 57

G. Civil commitment of convicted offender in need of care or treatment for 

mental condition (18 U.S.C. § 4244)3

1. Upon motion of the defendant or the government or on its own motion, the court may, before sentencing, determine that there is reasonable cause to believe that the defendant may be suffering from a 

mental disease or defect that requires custody for treatment in a 

suitable facility. In that event the court shall order a hearing. 18 

U.S.C. § 4244(a). 

2. Before the hearing the court may order that a psychiatric or psychological examination of the defendant be conducted and that a report 

be filed with the court, pursuant to § 4247(b) and (c). If it is the opinion of the examiner that the defendant is suffering from a mental 

disease or defect but that the condition is not such as to require the 

defendant’s custody for care or treatment, the examiner shall give his 

or her opinion concerning the sentencing alternatives that could best 

accord the defendant the kind of treatment he or she does need. 18 

U.S.C. § 4244(b). 

3. The hearing shall be conducted pursuant to the provisions of 

§ 4247(d). 

4. If, after the hearing, the court finds by a preponderance of the evidence that the defendant is suffering from a mental disease or defect 

and that, in lieu of being sentenced to imprisonment, he or she 

should be committed to a suitable facility for care or treatment, the 

court shall commit the defendant to the custody of the Attorney 

General for care or treatment in a suitable facility. Such commitment 

shall constitute a provisional sentence of imprisonment to the maximum term authorized by law for the offense of which the defendant 

was found guilty. 18 U.S.C. § 4244(d). 

5. When the director of the facility to which the defendant is sent certifies that the defendant is no longer in need of custody for care or 

treatment, the court shall proceed to sentencing, provided that the 

provisional sentence has not yet expired. 18 U.S.C. § 4244(e). 

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984, at 25 (3d ed. 2006) 

Pattern Criminal Jury Instructions 67 (1987) 

 

 3. If the civil commitment hearing is considered a “public proceeding in the district 

court involving . . . sentencing,” any victims of the offense have the rights to notification and 

attendance, plus the right “to be reasonably heard.” 18 U.S.C. § 3771(a)(2)–(4). 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 59

1.13 Referrals to magistrate judges 

(criminal matters) 

 Fed. R. Crim. P. 58 and 59; 28 U.S.C. § 636 

Procedure 

The general procedure for referring matters to magistrate judges is set forth 

in Fed. R. Crim. P. 59, which became effective December 1, 2005: 

(a) Nondispositive Matters. A district judge may refer to a magistrate judge for 

determination any matter that does not dispose of a charge or defense. The 

magistrate judge must promptly conduct the required proceedings and, when 

appropriate, enter on the record an oral or written order stating the determination. . . . 

(b) Dispositive Matters. 

 (1) . . . A district judge may refer to a magistrate judge for recommendation 

a defendant's motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings. 

A record must be made of any evidentiary proceeding and of any proceeding if 

the magistrate judge considers it necessary. The magistrate judge must enter 

on the record a recommendation for disposing of the matter, including any 

proposed findings of fact. 

 In either case, the parties have ten days to object to the order or recommendation, unless the court sets a longer period. “Failure to object in accordance with this rule waives a party’s right to review,” Fed. R. Crim. P. 59(a) 

and (b)(2), although the district court retains discretion to review the decision. The Advisory Committee Notes to Rule 59 emphasize that, “[a]lthough 

the rule distinguishes between ‘dispositive’ and ‘nondispositive’ matters, it 

does not attempt to define or otherwise catalog motions that may fall within 

either category. Instead, that task is left to the case law.” 

Specific proceedings 

Listed below are duties in criminal matters that are covered in sections 1, 2, 

and 4 of this Benchbook and that may be referred to magistrate judges. See 

also 28 U.S.C. § 636. Most districts have local rules or standing orders governing referrals to magistrate judges. 

 For a more comprehensive listing of the duties magistrate judges may 

perform, see Inventory of United States Magistrate Judge Duties (December 

1999), available from the Magistrate Judges Division of the Administrative 

Office of the U.S. Courts.1

 This information also appears in Chapter 3, “Juris-

 

 1. The online version of the Inventory was updated in July 2009. See http://jnet.ao.dcn/ 

Judges/Magistrate_Judges/Authority/Inventory_of_United_States_Magistrate_Judge_Dutie

s_July_2009.html. The Administrative Office also provides an online web page summarizing 
Section 1.13: Referrals to magistrate judges (criminal matters) 

60 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

diction,” of the Legal Manual for U.S. Magistrate Judges, published by the 

Administrative Office. 

 A magistrate judge may conduct 

1. bail proceedings and detention hearings. 18 U.S.C. §§ 3041, 3141–

3148; 28 U.S.C. § 636(a)(2). (See supra section 1.03: Release or detention pending trial.) 

2. arraignments, and may take not guilty pleas in felony cases.2

 28 

U.S.C. § 636(b)(1)(A). (See supra section 1.07: Arraignment and plea.) 

3. trial, judgment, and sentencing in a petty offense case; for other 

misdemeanors, the defendant’s express consent to be tried before a 

magistrate judge in writing or orally on the record is required. The defendant must also specifically waive trial, judgment, and sentencing 

by a district judge. See Fed. R. Crim. P. 58(b)(2)(E) and (3)(A); 18 

U.S.C. § 3401(b); 28 U.S.C. § 636(a)(3)–(5). A judgment of conviction 

or sentence by a magistrate judge may be appealed to the district 

court. 18 U.S.C. § 3402. Fed. R. Crim. P. 58 governs trials and appeals 

of misdemeanors and petty offenses. (See generally infra section 

2.03: Trial outline—criminal.) 

4. pretrial matters: 

(a) A magistrate judge may hear and determine non-dispositive pretrial matters in felony cases,3

 including discovery and appointment of counsel. A district court may reconsider a magistrate 

judge’s ruling on a non-dispositive matter if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim. 

P. 59(a). 

(b) A magistrate judge may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as a motion to suppress evidence 

or to dismiss an indictment. 28 U.S.C. § 636(b)(1)(B) and Fed. R. 

Crim. P. 58(b)(1). A district court must make a de novo determination of those portions of proposed findings and recommenda-

 

more recent decisions and articles relating to the duties and authority of magistrate judges 

at http://jnet.ao.dcn/Judges/Magistrate_Judges/Authority/Decisions.html. 

 2. Note that your circuit may allow a magistrate judge to take a plea of guilty in a felony 

case if the defendant consents. See Inventory of United States Magistrate Judge Duties 124–

26. It is recommended that this consent be in writing and expressly waive the right to enter 

the plea before an Article III judge. It is also advisable for the district court, at the start of the 

sentencing hearing, to state on the record that it, too, accepts the defendant’s plea of guilty, 

based upon information provided at the plea hearing and contained in the presentence report. 

 3. The Supreme Court held that decisions touching the core trial features of a felony case 

may be delegated to a magistrate judge only if expressly authorized by statute. Gomez v. 

United States, 490 U.S. 858 (1989). 
Section 1.13: Referrals to magistrate judges (criminal matters) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 61

tions to which the parties object, 28 U.S.C. § 636(b)(1)(C) and 

Fed. R. Crim. P. 58(b)(3), but need not hold a de novo hearing of 

all the evidence, United States v. Raddatz, 447 U.S. 667 (1980). 

 See generally infra section 2.03: Trial outline—criminal. 

5. voir dire in a felony case, if the parties consent. Peretz v. United States,

111 S. Ct. 2661 (1991). Note that “express consent by counsel suffices 

to permit a magistrate judge to preside over jury selection in a felony 

trial”—express consent by the defendant is not required. Gonzalez v. 

United States, 553 U.S. 242, 250 (2008). A magistrate judge may not 

conduct voir dire in a felony trial if the defendant objects. Gomez v. 

United States, 490 U.S. 858 (1989). (See infra section 2.06: Standard 

voir dire questions—criminal.) 

6. probation and supervised release modification hearings: 

(a) A magistrate judge may revoke, modify, or reinstate probation 

and modify, revoke, or terminate supervised release if any magistrate judge imposed the probation or supervised release in a misdemeanor case. 18 U.S.C. § 3401(d), (h). 

(b) In other cases, a district court judge may designate a magistrate 

judge to conduct hearings to modify, revoke, or terminate supervised release, and to submit to the district judge proposed findings of fact and recommend disposition under 18 U.S.C. 

§ 3583(e). 18 U.S.C. § 3401(i).4

 See generally infra section 4.02: Revocation of probation or supervised release. 

7. an omnibus hearing, subject to any right of review before a district 

court of dispositive matters. 28 U.S.C. § 636(b)(1)(A) and (B). 

 

 4. The Ninth Circuit held that neither 28 U.S.C. § 636 nor 18 U.S.C. § 3401 authorizes a 

magistrate judge to conduct probation revocation hearings in a felony case without the defendant’s consent. See United States v. Colacurcio, 84 F.3d 326, 329–34 (9th Cir. 1996) (reversed). See also United States v. Curry, 767 F.2d 328, 331 (7th Cir. 1985) (magistrate judge 

not authorized by 28 U.S.C. § 636(b)(3) to conduct probation revocation hearings without the 

defendant’s consent); Banks v. United States, 614 F.2d 95, 97–98 (6th Cir. 1980) (same). 

However, the Sixth Circuit held that § 3401(i) does not require a defendant’s consent when a 

magistrate judge is designated to conduct a hearing to revoke supervised release in a felony 

case. United States v. Waters, 158 F.3d 933, 938–39 (6th Cir. 1998) (declining to extend holding of Colacurcio to revocation of supervised release). Cf. United States v. Azure, 539 F.3d 

904, 907–10 (8th Cir. 2008) (record must reflect that district court “designated” magistrate 

judge to conduct revocation hearings pursuant to § 3401(i), but defendant may waive right to 

challenge designation by failing to object); United States v. Sanchez-Sanchez, 333 F.3d 1065, 

1069 (9th Cir. 2003) (section 3401(i) “must be strictly adhered to” and requires order from 

district court). 
Section 1.13: Referrals to magistrate judges (criminal matters) 

62 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

8. extradition hearings. 18 U.S.C. § 3184; Ward v. Rutherford, 921 F.2d 

286 (D.C. Cir. 1990), cert. dismissed, 111 S. Ct. 2844 (1991). (See supra

section 7.05: Foreign extradition proceedings.) 

9. “additional duties [that] are not inconsistent with the Constitution 

and laws of the United States.” 28 U.S.C. § 636(b)(3). For examples of 

additional duties and case law on § 636(b)(3), see Inventory of United 

States Magistrate Judge Duties 112–40 (December 1999). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 63

2.01 Taking pleas of guilty or nolo 

contendere 

Fed. R. Crim. P. 11 

Introduction 

This section is intended to serve as a guide to district judges, and to magistrate judges who are authorized to conduct change of plea hearings by consent,1

 when they conduct the formal plea taking, whether it occurs before or 

after review of the presentence report. It is important to emphasize that, 

while the plea of guilty is entered at the Rule 11 proceeding, the court may 

defer deciding whether to accept the terms of a plea agreement until after 

review of the presentence report.2 If after review of the report the district 

court rejects an agreement made pursuant to Rule 11(c)(1)(A) or (C), the 

court shall give the defendant the option to withdraw the plea. In either 

event, the judge’s goal in taking the plea must be to establish that the defendant is competent, that the plea is free and voluntary, that the defendant understands the charges and penalties, and that there is a factual basis for the plea. 

 This section is not intended to be all-inclusive. Circumstances may require that additional matters be established of record. In some cases, 

moreover, the court may find it necessary to resolve disputes about the presentence report before determining whether a plea agreement is acceptable. See infra section 4.01: Sentencing procedure. 

 Taking pleas from defendants who do not speak English raises problems 

beyond the obvious language barrier. Judges should be mindful not only of 

the need to avoid using legalisms and other terms that interpreters may 

have difficulty translating, but also of the need to explain such concepts as 

the right not to testify and the right to question witnesses, which may not be 

familiar to persons from different cultures. See 28 U.S.C. § 1827 regarding 

use of certified interpreters. 

 Some courts have developed Application for Permission to Enter Plea of 

Guilty forms and Written Plea Agreement forms. If used, such forms do not 

obviate the need for complete oral proceedings in open court that meet the 

requirements of Fed. R. Crim. P. 11. 

Outline 

[Note: Before proceeding with the hearing, the court may want to ask the 

prosecutor if there are any victims of the offense and, if so, whether the government has fulfilled its duty to notify them of the hearing and their right to 

 

 1. If the defendant consents to entering a plea of guilty before a magistrate judge, it is 

recommended that the consent be in writing and expressly waive the defendant’s right to 

enter the plea before an Article III judge. 

 2. Fed. R. Crim. P. 11(c)(3)(A); U.S.S.G. § 6B1.1(c), p.s. 
Section 2.01: Taking pleas of guilty or nolo contendere 

64 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

attend, and whether any victims want to be “reasonably heard.” 18 U.S.C. 

§ 3771(a)(2)–(4).3

] 

A. Determine, on the record, the purpose of the defendant’s appearance, 

that is, obtain a statement from defense counsel 4

 that the defendant 

wishes to enter a plea of guilty (or nolo contendere). 

B. If it has not previously been established, determine whether the plea is 

being made pursuant to a plea agreement of any kind. If so, require disclosure of the terms of the agreement (or if the agreement is in writing, 

require that a copy be produced for your inspection and filing). See Fed. 

R. Crim. P. 11(c)(2). 

C. Have the clerk administer the oath to the defendant.5

 [Note: If you have any doubts about the defendant’s ability to speak and 

understand English, consider appointing a certified interpreter in accordance with 28 U.S.C. § 1827.] 

D. Ask the defendant: 

1. Do you understand that you are now under oath and if you answer any of my questions falsely, your answers may later be used 

against you in another prosecution for perjury or making a false 

statement? 

[See Fed. R. Crim. P. 11(b)(1)(A)] 

2. What is your full name? 

3. Where were you born? 

[If the answer is not the United States or one of its territories, ask 

if the defendant is a United States citizen.] 

4. How old are you? 

5. How far did you go in school? 

6. Have you been treated recently for any mental illness or addiction 

to narcotic drugs of any kind? 

[Note: If the answer to this question is yes, pursue the subject 

with the defendant and with counsel in order to determine 

whether the defendant is currently competent to plead.] 

 

 3. If there are many victims who want to be heard, the court may need to “fashion a reasonable procedure to give effect to [their right to be heard] that does not unduly complicate 

or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). 

 4. If the defendant lacks counsel, you must advise the defendant of the right to an attorney. See supra section 1.02: Assignment of counsel or pro se representation; Fed. R. Crim. P. 

11(b)(1)(D). 

 5. An oath (or affirmation) is not required by Fed. R. Crim. P. 11, but is strongly recommended to avoid any subsequent contention in a proceeding under 28 U.S.C. § 2255 that the 

defendant did not answer truthfully at the taking of the plea because he or she was not 

sworn. 
Section 2.01: Taking pleas of guilty or nolo contendere 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 65

7. Are you currently under the influence of any drug, medication, or 

alcoholic beverage of any kind? 

[Note: Again, if the answer is yes, pursue the subject with the defendant and with counsel to determine whether the defendant is 

currently competent to plead.] 

8. Have you received a copy of the indictment (information)6 pending against you—that is, the written charges made against you in 

this case—and have you fully discussed those charges, and the 

case in general, with Mr./Ms. __________ as your counsel? 

9. Are you fully satisfied with the counsel, representation, and advice 

given to you in this case by your attorney, Mr./Ms. __________? 

E. If there is a plea agreement of any kind, ask the defendant: 

1. [If the agreement is written:] 

 Did you have an opportunity to read and discuss the plea agreement with your lawyer before you signed it? 

2. Does the plea agreement represent in its entirety any understanding you have with the government? 

3. Do you understand the terms of the plea agreement? 

4. Has anyone made any promise or assurance that is not in the plea 

agreement to persuade you to accept this agreement? Has anyone 

threatened you in any way to persuade you to accept this agreement? 

5. [If the terms of the plea agreement are nonbinding recommendations pursuant to Rule 11(c)(1)(B):7

 ]

 Do you understand that the terms of the plea agreement are 

merely recommendations to the court—that I can reject the recommendations without permitting you to withdraw your plea of 

 

 6. If the case involves a felony offense being prosecuted by information rather than indictment, and if a waiver of indictment has not previously been obtained in open court (see 

Fed. R. Crim. P. 7(b)), refer to supra section 1.06: Waiver of indictment. 

 7. Note that a plea agreement may contain factual stipulations which, unless part of a 

Rule 11(c)(1)(C) agreement, are not binding under the Rules or the Guidelines. However, 

some cases have held that a factual stipulation that directly affected the severity of the sentence should have been construed as a Rule 11(e)(1)(C) agreement, or that the stipulation 

was otherwise relied on by the parties so that it should have been followed or the defendant 

allowed to withdraw the plea. See, e.g., United States v. Bohn, 959 F.2d 389 (2d Cir. 1992); 

United States v. Torres, 926 F.2d 321 (3d Cir. 1991); United States v. Kemper, 908 F.2d 33 (6th 

Cir. 1990); United States v. Jeffries, 908 F.2d 1520 (11th Cir. 1990); United States v. Mandell, 

905 F.2d 970 (6th Cir. 1990). See also Guideline Sentencing: An Outline of Appellate Case 

Law § IX.A.4 (Federal Judicial Center 2002). Courts are advised to discuss any such stipulations before accepting the plea and to warn the defendant that the court might not follow 

them and that the defendant will not be allowed to withdraw the plea. 
Section 2.01: Taking pleas of guilty or nolo contendere 

66 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

guilty and impose a sentence that is more severe than you may anticipate? 

6. [If any or all of the terms of the plea agreement are pursuant to 

Rule 11(c)(1)(A) or (C):]

 Do you understand that if I choose not to follow the terms of the 

plea agreement [if some, but not all, terms are binding, identify 

those terms], I will give you the opportunity to withdraw your 

plea of guilty, and that if you choose not to withdraw your plea, I 

may impose a more severe sentence, without being bound by the 

plea agreement [or the specific terms rejected by the court]? 

7. [Inquire of defense counsel] Were all formal plea offers by the 

government conveyed to the defendant? [If the answer is no, take 

a recess to allow time for counsel to consult with the defendant.]8

F. If there is no formal plea agreement, ask the attorneys whether the prosecutor made any formal plea agreement offers and, if so, whether those 

offers were conveyed to the defendant. [If offers have not been conveyed, take a recess to allow time for counsel to consult with the defendant].9

G. Whether or not there is a plea agreement, ask the defendant: 

Has anyone attempted in any way to force you to plead guilty (nolo 

contendere) or otherwise threatened you? Has anyone made any 

promises or assurances of any kind to get you to plead guilty (other 

than those that are in the plea agreement)? Are you pleading guilty of 

your own free will because you are guilty? 

[See Fed. R. Crim. P. 11(b)(2)]. 

 8. See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (“defense counsel has the duty to 

communicate formal offers from the prosecution to accept a plea on terms and conditions 

that may be favorable to the accused.”); Lafler v. Cooper, 132 S. Ct. 1376, 1383–86 (2012) 

(“when inadequate assistance of counsel caused nonacceptance of a plea offer and further 

proceedings led to a less favorable outcome,” defendant had claim for ineffective assistance 

of counsel). See also Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) (“the negotiation of a 

plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”). If a more favorable plea offer has lapsed, or defense counsel’s advice to reject an offer will lead to “a less favorable outcome,” defendants may “show 

prejudice from ineffective assistance of counsel . . . [by] demonstrat[ing] a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea 

would have been entered without the prosecution canceling it or the trial court refusing to 

accept it . . . . To establish prejudice in this instance, it is necessary to show a reasonable 

probability that the end result of the criminal process would have been more favorable by 

reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 132 S. Ct. at 1409. 

 9. See supra note 8 and accompanying text. 
Section 2.01: Taking pleas of guilty or nolo contendere 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 67

H. If the plea relates to a felony offense, consider asking the defendant: 

 Do you understand that the offense to which you are pleading guilty 

(nolo contendere) is a felony offense, that if your plea is accepted 

you will be adjudged guilty of that offense, and that such adjudication may deprive you of valuable civil rights, such as the right to vote, 

the right to hold public office, the right to serve on a jury, and the 

right to possess any kind of firearm? 

[If the defendant is not a citizen of the United States, ask:] 

1. Have you discussed the possible immigration consequences of a 

guilty plea with your attorney? 

2. Do you understand that if you are not a citizen of the United 

States, in addition to the other possible penalties you are facing, 

a plea of guilty may subject you to deportation, exclusion, or voluntary departure, and prevent you from obtaining U.S. citizenship?10

[If the defendant is accused of a sex offense, ask:] 

 Do you understand that a conviction for this offense will likely result 

in substantial future restrictions on where you may live or work, and 

with whom you may associate?11 

 10. In Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), the Supreme Court held that a defense attorney has the duty to advise a defendant of the possible immigration consequences 

of a guilty plea. Although Padilla is directed at advice given by counsel, the Judicial Conference of the United States has approved an amendment to Rule 11(b)(1) to add new subsection (O), which would require a court to warn that, “if convicted, a defendant who is not a 

United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” This amendment would take effect on 

Dec. 1, 2013, if not changed or rejected by the Supreme Court or the U.S. Congress. Cf. United 

States v. Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (district court’s “general and equivocal 

admonishment [was] insufficient to correct counsel’s affirmative misadvice that Akinsade’s 

crime was not categorically a deportable offense. More importantly, the admonishment did 

not ‘properly inform’ Akinsade of the consequence he faced by pleading guilty: mandatory 

deportation. . . . Here, the district court did not elicit a direct response to the deportation admonishment, but instead asked if Akinsade understood a list of generalized warnings of 

which deportation was a part.”); United States v. Bonilla, 637 F.3d 980, 983–86 (9th Cir. 2011) 

(citing Padilla, the court held defense counsel’s failure to warn defendant that he faced deportation by pleading guilty until after defendant had done so was a “fair and just reason” 

under Rule 11(d)(2)(B) that would allow defendant to withdraw plea). 

11. In addition to various state and local laws that may place restrictions on convicted 

sex offenders, the Adam Walsh Child Protection and Safety Act of 2006 (“The Act”), Pub. L. No. 

109-248, 120 Stat. 587, established a national sex offender registration system that requires 

certain sex offenders to register in their jurisdiction of residence after release from prison 

(or after sentencing if not incarcerated). See 42 U.S.C. §§ 16901–16902 & 16911–16929 (the 

Sex Offender Registration and Notification Act). Failure to register or update registration 

can result in fines or imprisonment under 18 U.S.C. § 2250. The Act also provided for the 

possibility that, rather than being released at the conclusion of their sentence, some con-
Section 2.01: Taking pleas of guilty or nolo contendere 

68 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

I. Inform the defendant of the following: 

1. The maximum possible penalty provided by law, and any mandatory 

minimum penalty: 

(a) For drug offenses: Determine whether the drug quantity involved 

or other aggravating factors will trigger application of a mandatory minimum sentence. Because this may not be known at the 

time the plea is taken, the court is advised to warn the defendant 

of any possible maximum and mandatory minimum sentences 

that may be imposed after a final determination of quantity and 

other aggravating factors. 

(b) Determine whether the defendant faces a mandatory minimum 

sentence or an increase in the statutory maximum sentence because of one or more prior firearms offenses, violent felonies, or 

drug offenses. If this is not known at the time of the plea, advise 

the defendant of the possible maximum sentence. 

(c) Include the duration of any authorized or mandatory term of supervised release, and ask the defendant: 

 Do you understand that if you violate the conditions of supervised release, you can be given additional time in prison? 

(d) If the offense carries a maximum sentence of twenty-five years or 

more, or the statute specifically prohibits probation, include a reference to the unavailability of a probation sentence under 18 

U.S.C. § 3561(a)(1) or (2). 

(e) Inform the defendant of the maximum possible fine, if any. 

2. If applicable, that the court may also order, or may be required to order under the Mandatory Victims Restitution Act, that the defendant 

make restitution to any victim of the offense. See 18 U.S.C. § 3663A. 

See also 18 U.S.C. § 3771(a)(6) (giving victims the right “to full and 

timely restitution as provided in law”). 

 

victed sex offenders could be subject to civil commitment as a “sexually dangerous person” 

under 18 U.S.C. § 4248.

 Although not required to do so by Rule 11, in light of Padilla, courts should consider providing some warning to defendants of the possible collateral consequences of a conviction 

for a sexual offense. See, e.g., United States v. Youngs, 687 F.3d 56, 61–63 & n.6 (2d Cir. 2012) 

(although due process and Rule 11 do not require warning defendants about the possibility 

of civil commitment as a sexually dangerous person, “it is a potential consequence that 

could affect defendants’ assessment of the costs and benefits of a guilty plea, and alerting 

defendants to it on the record could forestall later claims by defendants that they were misadvised by counsel concerning the relative costs and benefits of the plea.”). Cf. Bauder v. 

Dept. of Corrections, State of Fla., 619 F.3d 1272, 1274-75 (11th Cir. 2010) (citing Padilla in 

holding that defense counsel’s affirmative misrepresentation that defendant would not be 

exposed to state’s civil commitment law after his sentence ended was ineffective assistance 

of counsel that warranted postconviction relief). 
Section 2.01: Taking pleas of guilty or nolo contendere 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 69

3. If applicable, that the court may require the defendant to forfeit certain property to the government. 

4. If the offense involved fraud or other intentionally deceptive practices,

that the court may order the defendant to provide notice of the conviction to victims of the offense. See 18 U.S.C. § 3555.

5. That for each offense, the defendant must pay a special assessment 

of $100 ($25 for a Class A misdemeanor, $10 for Class B, $5 for Class C 

or infraction) required by 18 U.S.C. § 3013.

 Fed. R. Crim. P. 11(b)(1). 

J. Ask the defendant: 

Do you understand those possible consequences of your plea that I 

have just gone over with you? 

K. Inform the defendant that his or her sentence will be determined by a 

combination of advisory Sentencing Guidelines, possible authorized departures from those guidelines, and other statutory sentencing factors. 

Fed. R. Crim. P. 11(b)(1)(M). 

L. Ask the defendant: 

1. Have you and your attorney talked about how these advisory Sentencing Guidelines might apply to your case? 

 [Note: If there is a plea agreement that a specific sentence will be imposed (Fed. R. Crim. P. 11(c)(1)(C)), skip to question 4.] 

2. Do you understand that the court will not be able to determine 

the advisory guideline range for your case until after the presentence report has been completed and you and the government 

have had an opportunity to challenge the reported facts and the 

application of the guidelines recommended by the probation officer, and that the sentence ultimately imposed may be different 

from any estimate your attorney may have given you? 

3. Do you also understand that, after your initial advisory guideline 

range has been determined, the court has the authority in some 

circumstances to depart upward or downward from that range, 

and will also examine other statutory sentencing factors, under 18 

U.S.C. § 3553(a), that may result in the imposition of a sentence 

that is either greater or lesser than the advisory guideline sentence? 

4. Do you also understand that parole has been abolished and that 

if you are sentenced to prison you will not be released on parole? 

M. Ask the defendant: 

1. Do you also understand that under some circumstances you or 

the government may have the right to appeal any sentence that I 

impose? 
Section 2.01: Taking pleas of guilty or nolo contendere 

70 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

[If the plea agreement involves a waiver of the right to appeal the sentence, ask the defendant:] 

2. Do you understand that by entering into this plea agreement and 

entering a plea of guilty, you will have waived, or given up, your 

right to appeal or collaterally attack all or part of this sentence? 

 (The court should discuss the specific terms of the waiver with the 

defendant to ensure that the waiver is knowingly and voluntarily entered into and that the defendant understands the consequences. 

Fed. R. Crim. P 11(b)(1)(N).12) 

N. Ask the defendant: 

1. Do you understand 

(a) that you have a right to plead not guilty to any offense 

charged against you and to persist in that plea; 

(b) that you would then have the right to a trial by jury; 

(c) that at trial you would be presumed to be innocent and the 

government would have to prove your guilt beyond a reasonable doubt; 

(d) that you would have the right to the assistance of counsel for 

your defense—appointed by the court if necessary—at trial and 

every other stage of the proceeding, the right to see and hear 

all the witnesses and have them cross-examined in your defense, the right on your own part to decline to testify unless 

you voluntarily elected to do so in your own defense, and the 

right to compel the attendance of witnesses to testify in your 

defense?13 

 Do you understand that should you decide not to testify or put 

on any evidence, these facts cannot be used against you? 

2. Do you further understand that by entering a plea of guilty (nolo 

contendere), if that plea is accepted by the court, there will be no 

trial and you will have waived, or given up, your right to a trial as 

well as those other rights associated with a trial as I just described 

them? 

 See Fed. R. Crim. P. 11(b(1)(B) to (F). 

O. Inform the defendant of the nature of the charge(s) to which he or she is 

pleading guilty (nolo contendere) by reading or summarizing the indictment (information). Then 

 

12. Note that the waiver may not be enforceable if the sentence is not in accordance 

with the terms of the plea agreement. 

13. Although it is not required as part of the Rule 11 colloquy, the court may inform the 

defendant of the right under Rule 17(c)(1)to compel the production of documents from witnesses by subpoena. 
Section 2.01: Taking pleas of guilty or nolo contendere 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 71

1. further explain the essential elements of the offense, i.e., what the 

government would be required to prove at trial;14 and/or (except in 

pleas of nolo contendere) 

2. have the defendant explain and assent to the facts constituting the 

crime(s) charged. 

 See Fed. R. Crim. P. 11(b)(1)(G). 

P. In the case of a plea of guilty (including an Alford plea15), have the government counsel make a representation concerning the facts the government would be prepared to prove at trial (to establish an independent 

factual basis for the plea). See Fed. R. Crim. P. 11(b)(3)]. 

If the defendant’s plea is nolo contendere, he or she is neither admitting 

nor denying guilt.16 Fed. R. Crim P. 11(b)(3) is therefore not applicable. 

The court may wish to consider having the government make a representation concerning the facts of the case. 

Q. If there is a plea agreement involving dismissal of other charges, or an 

agreement that a specific sentence will be imposed, and if consideration 

of the agreement is to be deferred, ask the defendant: 

 Do you understand that if you plead guilty, a presentence report 

will be prepared, and I will then consider whether to accept the 

plea agreement, and that if I decide to reject the plea agreement, 

you will then have an opportunity to withdraw your plea and 

change it to not guilty? 

R. Ask the defendant: 

 How do you now plead to the charge: guilty or not guilty? 

S. Before accepting the defendant’s plea, if there are victims of the offense 

present, allow them the opportunity “to be reasonably heard.” 18 U.S.C. 

§ 3771(a)(4). 

T. If you are satisfied with the responses given during the hearing, make 

the following finding on the record: 

 It is the finding of the court in the case of United States v. ______ 

that the defendant is fully competent and capable of entering an 

 14. Reference may be made to the standard or pattern jury instructions normally used 

in your court. 

15. North Carolina v. Alford, 400 U.S. 25 (1970). See also United States v. Tunning, 69 

F.3d 107, 110–14 (6th Cir. 1995) (discussing establishment of factual basis for Alford plea and 

difference between Alford plea and plea of nolo contendere). 

16. The plea of nolo contendere is never entertained as a matter of course. Fed. R. Crim. 

P. 11(a)(1) provides that the plea may be entered “with the court’s consent.” Rule 11(a)(3) 

provides further that before accepting the plea “the court must consider the parties’ views 

and the public interest in the effective administration of justice.” In general, courts accept a 

plea of nolo contendere only in certain types of cases involving nonviolent crimes where 

civil implications may arise from a guilty plea. 
Section 2.01: Taking pleas of guilty or nolo contendere 

72 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

informed plea, that the defendant is aware of the nature of the 

charges and the consequences of the plea, and that the plea of 

guilty [nolo contendere] is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. The plea is therefore accepted, and 

the defendant is now adjudged guilty of that offense. 

U. If a presentence report has been reviewed before plea taking or is not required (see Fed. R. Crim. P. 32(c)(1)(A)), proceed to disposition. (See infra

section 4.01: Sentencing procedure.) Otherwise, inform the defendant 

1. that a written presentence report will be prepared by the probation 

office to assist the judge in sentencing; 

2. that the defendant will be asked to give information for the report, 

and that his or her attorney may be present if the defendant wishes; 

3. that the court shall permit the defendant and counsel to read the 

presentence report and file any objections to the report before the 

sentencing hearing (Fed. R. Crim. P. 32(e)(2) and (f)); 

4. that the defendant and his or her counsel shall have an opportunity 

to speak on behalf of the defendant at the sentencing hearing (Fed. 

R. Crim. P. 32(i)(4)(A)); and 

5. that, if there are any victims of the offense, the victims shall be afforded an opportunity to be heard at the sentencing hearing. 18 

U.S.C. § 3771(a)(4). 

V. Refer the defendant to the probation officer for a presentence investigation and report (pursuant to Fed. R. Crim. P. 32(c)(1)), set the disposition 

date for sentencing, and determine bail or conditions of release pending 

sentencing. See infra section 2.11: Release or detention pending sentence or appeal. 

1. If the defendant has been at liberty on bond or personal recognizance, invite defense counsel to argue for release pending sentencing. See 18 U.S.C. § 3143(a). Give the U.S. attorney an opportunity to 

respond. If any victims of the offense are present, allow them an opportunity “to be reasonably heard.” 18 U.S.C. § 3771(a)(4). 

2. If the defendant is to be released pending sentencing, advise the defendant 

(a) when and where he or she is required to appear for sentencing; 

(b) that failure to appear as required is a criminal offense for which 

he or she could be sentenced to imprisonment; 

(c) that all the conditions on which he or she was released up to now 

continue to apply; and 

(d) that the penalties for violating those conditions can be severe. 
Section 2.01: Taking pleas of guilty or nolo contendere 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 73

W. If appropriate, enter a preliminary order of forfeiture under Fed. R. Crim. 

P. 32.2(b). The preliminary order must be entered “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final.” Fed. R. Crim. P. 32.2(b)(2)(B). Note 

that the defendant must be provided notice and a reasonable opportunity to be heard on the timing and form of the order. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 75

2.02 Taking pleas of guilty or nolo 

contendere (organization1

) 

Fed. R. Crim. P. 11 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. 

It may be advisable to ask the prosecutor if there are any victims and, if so, 

whether the government has fulfilled its duty to notify them. Also, any victims who are present at the plea hearing have a right “to be reasonably 

heard.” § 3771(a)(4).]2

A. Before accepting a plea of guilty or nolo contendere from the representative of an organization, the court should be satisfied that 

1. the person appearing before the court is an officer or authorized employee of the organization; 

2. the board of directors is empowered to authorize a person to enter a 

plea of guilty or nolo contendere to a charge brought against the organization; 

3. the person before the court is authorized by a valid resolution to enter a plea of guilty or nolo contendere to the charge before the court; 

and 

4. the organization is financially able to pay a substantial fine that 

could be imposed by the court for the charge involved in the plea of 

guilty or nolo contendere. 

B. After the court receives the information set out above and ascertains that 

the plea can be taken from the person before the court, the person 

should be placed under oath and informed of the following: 

1. the nature of the charge(s) to which the plea is offered; 

2. the mandatory minimum penalty provided by law, if any; 

3. the special assessment for each offense of $400 ($125 for a Class A 

misdemeanor, $50 for Class B, $25 for Class C or infraction) required 

by 18 U.S.C. § 3013;

4. the maximum possible penalty provided by law; 

5. if applicable, that the court may also order the organization to make 

restitution to any victim of the offense; 

 

 1. Effective December 1, 1999, Fed. R. Crim. P. 11(a) substituted “organization” for “corporation.” Organization is defined in 18 U.S.C. § 18 as “a person other than an individual.” 

 2. If there are many victims who want to be heard, the court may need to “fashion a reasonable procedure to give effect to [their right to be heard] that does not unduly complicate 

or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). 
Section 2.02: Taking pleas of guilty or nolo contendere (organization) 

76 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

6. if applicable, that the court may require the organization to forfeit certain property to the government; 

7. if the offense involved fraud or other intentionally deceptive practices,

that the court may order the organization to provide notice of the 

conviction to victims of the offense (see 18 U.S.C. § 3555); 

8. if appropriate, the right to be represented by an attorney; 

9. that the organization has the right to plead not guilty or to persist in 

that plea if it has already been made; 

10. that the organization has a right to be tried by a jury and at that trial 

has the right to 

(a) the assistance of counsel; 

(b) confront and cross-examine witnesses against the organization; 

11. that if the organization pleads guilty, there will be no further trial of 

any kind; 

12. that by pleading guilty for the organization, the representative of the 

organization waives the organization’s right to trial; 

13. that the court will ask the representative of the organization questions about the offense before the court and that if he or she answers 

these questions, under oath, on the record, and in the presence of 

counsel, the answers may later be used against the representative in 

a prosecution for perjury or false statement; and 

14. the essential elements of the offense that are involved, and whether 

the representative understands what the government must prove. 

C. The court will then inquire 

1. whether the plea is voluntarily made on behalf of the organization 

and not as a result of force, threats, or promises apart from a plea 

agreement; and 

2. whether there is a plea agreement and, if so, what the agreement is. 

D. If the court is satisfied with the representative’s responses, ask how he or 

she pleads: guilty, not guilty, or nolo contendere. 

E. If the plea is guilty, follow your normal Fed. R. Crim. P. 11 procedure for 

establishing the factual basis in the case. If the plea is nolo contendere, 

the court may wish to consider having the government make a representation concerning the facts of the case. 

F. Make the required findings concerning the establishment of the plea, 

which should include findings concerning items A.1, A.2, A.3, and A.4 

above, relating to the propriety of taking the plea from the representative of the organization. Allow any victims of the offense who are present 

to be “reasonably heard.” 18 U.S.C. § 3771(a)(4). 

G. Make a finding on the guilt of the organization after the guilty or nolo 

contendere plea. 
Section 2.02: Taking pleas of guilty or nolo contendere (organization) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 77

H. Inform the representative 

1. that a written presentence report will be prepared by the probation 

office to assist the court in sentencing; 

2. that the organization, the representative, or both will be required to 

give information for the report and that the organization’s attorney 

may be present; 

3. that the representative and the organization’s counsel shall be afforded the opportunity to speak on behalf of the organization at the 

sentencing hearing (Fed. R. Crim. P. 32(i)(4)(A)); 

4. that if there are any victims of the offense, the victims shall be afforded an opportunity to be heard at the sentencing hearing (18 

U.S.C. § 3771(a)(4)); and 

5. that the court shall permit the representative and counsel to read the 

presentence report before the sentencing hearing (Fed. R. Crim. P. 

32(e)(2)).

I. Advise the representative of the date, time, and place of the sentencing 

hearing, and order him or her to appear. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 79

2.03 Trial outline—criminal 

1. Have the case called for trial.1

2. Jury is selected (see infra section 2.05: Jury selection—criminal). 

3. Give preliminary instructions to the jury (see infra section 2.07: Preliminary jury instructions—criminal case). 

4. Ascertain whether any party wishes to invoke the rule to exclude from 

the courtroom witnesses scheduled to testify in the case. [But see 18 

U.S.C. § 3510, stating that victims of the offense may not be excluded 

from trial merely because they may speak at the sentencing hearing. 

See also 18 U.S.C. § 3771(a)(3) and (b), giving any victim of the offense the right to attend “any public court proceeding . . . involving 

the crime” unless the court finds that “testimony by the victim would 

be materially altered if the victim heard other testimony at that proceeding.” The court “shall make every effort to permit the fullest attendance possible by the victim.”2

] 

5. Government counsel makes an opening statement. 

6. Defense counsel makes an opening statement (unless counsel asked 

to reserve). 

7. Government counsel calls witnesses. [Note: If there may be testimony by child victims or child witnesses, judges should be aware of 

the special procedures and safeguards in 18 U.S.C. § 3509 that may 

apply.] 

8. Government rests. 

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

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

to reserve. 

11. Defense counsel calls witnesses for the defense. 

12. Defense rests. 

13. Counsel call rebuttal witnesses. 

14. Government rests on its entire case. 

15. Defense rests on its entire case. 

16. Motion for judgment of acquittal. Fed. R. Crim. P. 29(a), (b) (see infra

section 2.10: Trial and post-trial motions). 

 

 1. Fed. R. Crim. P. 43 prohibits trial in absentia of a defendant who is not present at the 

beginning of trial. Crosby v. United States, 506 U.S. 255 (1993). 

 2. Note also that Fed. R. Evid. 615 does not authorize the exclusion of “a person authorized by statute to be present.” 
Section 2.03: Trial outline—criminal 

80 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

17. Out of hearing of the jury, rule on counsel’s requests for instructions 

and inform counsel as to the substance of the court’s charge. Fed. R. 

Crim. P. 30(b). 

18. Closing argument by prosecution, closing argument by defense, rebuttal by prosecution. Fed. R. Crim. P. 29.1. 

19. Charge the jury (see infra section 2.08: General instructions to jury at 

end of criminal case). In the court’s discretion, the jury may be instructed before closing arguments. Fed. R. Crim. P. 30(c). 

20. Rule on objections to the charge and make any appropriate additional charge. Provide an opportunity for counsel to object out of the 

jury’s hearing and, on request, out of the jury’s presence. Fed. R. 

Crim. P. 30(d). 

21. If you are going to discharge the alternate jurors, excuse and thank 

them.3 If you plan to retain the alternate jurors, ensure that they do 

not discuss the case with any other person unless they replace a 

regular juror. If an alternate juror replaces a juror after deliberations 

have begun, instruct the jury to begin its deliberations anew. Fed. R. 

Crim. P. 24(c)(3). 

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

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

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

25. Recess court during the jury deliberations. 

26. Before responding to any communications from the jury, consult with 

counsel on the record (see infra section 2.08: General instructions to 

jury at end of criminal case). 

27. If the jury fails to arrive at a verdict before the conclusion of the first 

day’s deliberations, either provide for their overnight sequestration 

or permit them to separate after instructing them as to their conduct 

and fixing the time for their return to resume deliberations. Provide 

for safekeeping of exhibits. 

28. If the jury reports that they cannot agree on a verdict, determine by 

questioning whether they are hopelessly deadlocked. Do not inquire 

as to the numerical split of the jury. If you are convinced that the jury 

is hopelessly deadlocked, declare a mistrial. If you are not so convinced, direct them to resume their deliberations. Consider giving 

your circuit’s approved Allen-type charge to the jury before declaring 

a mistrial. 

 

 3. In a case involving potentially lengthy jury deliberations, judges may wish to consider retaining at least one alternate juror. 
Section 2.03: Trial outline—criminal 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 81

 29. When the jury has agreed on a verdict, reconvene court and take the 

verdict (see infra section 2.09: Verdict—criminal). 

30. Poll the jurors individually on the request of either party, or on your 

own motion (see infra section 2.09: Verdict—criminal). Fed. R. Crim. 

P. 31(d). 

31. Thank and discharge the jury. 

32. If the verdict is “not guilty,” discharge the defendant. 

33. If the defendant has been found guilty, determine whether the defendant should be committed to the custody of the U.S. marshal or 

released on bail (see infra section 2.11: Release or detention pending 

sentence or appeal). 

34. Fix a time for post-trial motions. 

35. Adjourn or recess court. 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials (Tucker Carrington & Kris 

Markarian eds., 6th ed. 2010) 

For a discussion of case-management techniques in civil trials, some of 

which may also be helpful in the management of criminal trials, see Civil 

Litigation Management Manual 87–90 (Judicial Conference of the 

United States 2001) 

For a discussion of trial management in complex civil litigation, some of 

which may be applicable to management of a criminal trial, see Manual 

for Complex Litigation, Fourth 131–66 (2004) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 83

2.04 Findings of fact and conclusions of law 

in criminal cases and motions 

Fed. R. Crim. P. 12 and 23 

A. When required 

1. Fed. R. Crim. P. 23(c): 

 In all cases tried without a jury, “the court must find the defendant 

guilty or not guilty. If a party requests before the finding of guilty or 

not guilty, the court must state its specific findings of fact in open 

court or in a written decision or opinion.” 

2. Fed. R. Crim. P. 12(d) and (f)—Ruling upon Motions: 

 “When factual issues are involved in deciding a motion, the court 

must state its essential findings on the record.” (Emphasis added.) 

B. Form 

1. Fed. R. Crim. P. 23(c) provides that, after a trial without a jury, “the 

court must state its specific findings of fact in open court or in a written decision or opinion.” 

2. Fed. R. Crim. P. 12(d) provides that “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” 

3. Fed. R. Crim. P. 12(f) provides that “[a]ll proceedings at a motion 

hearing, including any findings of fact or conclusions of law made 

orally by the court, must be recorded by a court reporter or a suitable 

recording device.” 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 85

2.05 Jury selection—criminal 

The Benchbook Committee recognizes that there is no uniform recommended procedure for selecting jurors to serve in criminal or civil cases and 

that judges will develop the patterns or procedures most appropriate for 

their districts and their courts. Section 2.06 infra, however, provides an outline of standard voir dire questions. For a sample juror questionnaire, see 

Sample Forms 42 and 43 in Appendix A of the Civil Litigation Management 

Manual (Judicial Conference of the United States, 2d ed. 2010) (the forms 

are available only online at http://cwn.fjc.dcn/fjconline/home.nsf/pages/ 

1245). A discussion of Batson cases and anonymous juries is included below. 

 The 1982 Federal Judicial Center publication Jury Selection Procedures in 

United States District Courts, by Gordon Bermant, contains a detailed discussion of several different methods of jury selection. Copies are available from 

the Federal Judicial Center library on request. See also the section on jury selection and composition (pp. 580–82) in Judge William W Schwarzer’s article 

“Reforming Jury Trials” in volume 132 of Federal Rules Decisions (1990). 

 Note that any victims of the offense are entitled to be notified of and to 

attend “any public court proceeding . . . involving the crime,” which would 

include jury selection. See 18 U.S.C. § 3771(a)(2) and (3). 

Peremptory challenges 

Judges should be aware of the cases, beginning with Batson v. Kentucky, 476 

U.S. 79 (1986), that prohibit peremptory challenges based on race. Batson

has been extended to cover a criminal defendant’s peremptory challenges, 

Georgia v. McCollum, 505 U.S. 42 (1992), and a defendant may object to racebased exclusions whether or not he or she is the same race as the challenged 

juror, Powers v. Ohio, 499 U.S. 400 (1991). Peremptory strikes based on gender are also prohibited. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 

 The Supreme Court has left it to the trial courts to develop rules of procedure and evidence for implementing these decisions. It has, however, set 

out a three-step inquiry for resolving a Batson challenge (see Purkett v. Elem,

514 U.S. 765, 767 (1995)): 

1. At the first step of the Batson inquiry, the burden is on the opponent 

of a peremptory challenge to make out a prima facie case of discrimination. A prima facie case may be shown where (1) the prospective 

juror is a member of a cognizable group, (2) the prosecutor used a 

peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by the 
Section 2.05: Jury selection—criminal 

86 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

juror’s membership in the cognizable group. Johnson v. California, 

545 U.S. 162, 170 (2005). The burden at this stage is low.1

2. If the opponent of the peremptory challenge satisfies the step one 

prima facie showing, the burden then shifts to the proponent of the 

strike, who must come forward with a nondiscriminatory explanation 

of the strike. 

3. If the court is satisfied with the neutral explanation offered, it must 

then proceed to the third step, to determine the ultimate question of 

intentional discrimination. Hernandez v. New York, 500 U.S. 352 

(1991). The opponent of the strike has the ultimate burden to show 

purposeful discrimination. The court may not rest solely upon the 

neutral explanation offered by the proponent of the strike. Instead, 

the court must undertake a sensitive inquiry into the circumstantial 

and direct evidence of intent, Batson, 476 U.S. at 93, and evaluate the 

“persuasiveness of the justification” offered by the proponent of the 

strike. Purkett, 514 U.S. at 768. One method of undertaking such an 

inquiry is to make a “side-by-side comparison” of the reasons given 

for striking panelists and the reasons for not striking those who were 

allowed to serve. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). 

 The Benchbook Committee suggests that judges 

• conduct the above inquiry on the record but outside of the venire’s 

hearing, to avoid “tainting” the venire by discussions of race, gender, 

or other characteristics of potential jurors; and 

• use a method of jury selection which requires litigants to exercise 

challenges at sidebar or otherwise outside the venire’s hearing and in 

which no venire members are dismissed until all of the challenges 

have been exercised. See Jury Selection Procedures in United States 

District Courts,supra. 

These procedures should ensure that prospective jurors are never aware of 

Batson discussions or arguments about challenges and therefore can draw 

no adverse inferences by being temporarily dismissed from the venire and 

then recalled.2

 

 1.“[A] defendant satisfies the requirements of Batson’s first step by producing evidence 

sufficient to permit the trial judge to draw an inference that discrimination has occurred.” 

The defendant does not have to show that it was “more likely than not” that discrimination 

occurred. Johnson, 545 U.S. at 170. 

 2. For a summary of procedures that courts developed for criminal cases in the first two 

years after Batson, see Bench Comment, nos. 3 & 4 (1988). For a discussion of voir dire practices in light of Batson, see Chambers to Chambers, vol. 5, no. 2 ( Federal Judicial Center 

1987). 
Section 2.05: Jury selection—criminal 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 87

Anonymous juries3

In rare cases, a district court may determine that a jury should be impaneled 

anonymously because of concerns about juror safety or tampering. The 

court may enter an order to prevent disclosure of names, addresses, places 

of employment, and other facts that might reveal the identity of jurors.4 The 

Benchbook Committee neither advocates nor discourages use of an anonymous jury but notes that courts must be careful to take steps to minimize potential prejudice to defendants from this procedure. Listed below are the 

main “rules” that may be summarized from circuit court decisions on this issue.5

1. There must be a strong reason to believe the jury needs protection. 

For example, anonymous juries have been approved in cases involving organized crime figures who, currently or previously, attempted 

to or did influence, intimidate, or harm witnesses, jurors, or judges. 

Extensive media coverage may be considered in combination with 

other factors. 

2. The court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights 

to an impartial jury and fair trial are not infringed. For example, the 

court should 

(a) ensure that the voir dire allows the defendant to adequately assess the prospective jurors and uncover possible bias as to the defendant or the issues in the case. The court should conduct a 

thorough and searching voir dire, which could include use of written questionnaires. 

 

 3. Note that, with one exception, anonymous juries are not allowed in capital cases. See

18 U.S.C. § 3432 (defendant charged with capital offense must be given list of potential jurors and witnesses three days before trial, “except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person”) (exception added Sept. 13, 

1994). 

 4. The Third Circuit held that it is within the trial court’s discretion to hold an evidentiary hearing on whether the facts warrant an anonymous jury. It also held that the court is 

not required to make findings and give reasons on the record for using an anonymous jury, 

but suggested that doing so is the “better practice.” See United States v. Eufrasio, 935 F.2d 553 

(3d Cir. 1991). 

 5. Most circuits have now ruled on this issue and approved the use of anonymous juries 

under appropriate circumstances. See United States v. Shryock, 342 F.3d 948, 971 (9th Cir. 

2003); United States v. Talley, 164 F.3d 989, 1001–02 (6th Cir. 1999); United States v. DeLuca, 

137 F.3d 24 (1st Cir. 1998); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United 

States v. Krout, 66 F.3d 1420 (5th Cir. 1995); United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 

1995) (per curiam); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); United States v. 

Crockett, 979 F.2d 1204 (7th Cir. 1992); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) 

(also discussing several prior Second Circuit cases); United States v. Scarfo, 850 F.2d 1015 

(3d Cir. 1988). 
Section 2.05: Jury selection—criminal 

88 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(b) give plausible and nonprejudicial reasons to ensure that the explanation for jury anonymity does not adversely reflect on the defendant. The court may, for example, assure jurors that this is a 

common practice or that it is to protect them from unwanted media attention.6

 It may be advisable to repeat the explanation during jury instructions and before jury deliberation, to stress that 

the need for anonymity should have no effect on the verdict. 

Other FJC sources 

For a discussion of techniques for selecting and assisting the jury in civil trials, some of which may also be helpful in criminal trials, see Civil Litigation Management Manual 106–07, 110–12 (Judicial Conference of the 

United States, 2d ed. 2010) and Manual for Complex Litigation, Fourth 

150–53 (2004) 

Gordon Bermant, Jury Selection Procedures in United States District Courts 

(1982) 

Manual on Recurring Problems in Criminal Trials 19–22 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

 

 6. For examples of explanations, see Ross, 33 F.3d 1507, at n.27; United States v. Tutino, 

883 F.2d 1125 (2d Cir. 1989); Scarfo, 850 F.2d 1015, at Appendix; United States v. Barnes, 604 

F.2d 121 (2d Cir. 1979). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 89

2.06 Standard voir dire questions—criminal 

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3), 

any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of the accused,” and to attend that proceeding. 

It may be advisable to ask the prosecutor if there are any victims and, if so, 

whether the government has fulfilled its duty to notify them.] 

A. The following outline for an initial in-depth voir dire examination of the 

entire panel by the court assumes that 

1. if there are affirmative responses to any questions, follow-up questions will be addressed to the juror(s) (at sidebar, if such questions 

concern private or potentially embarrassing matters); and 

2. the court and counsel have been furnished with the name, address, 

age, and occupation of each prospective juror. 

B. If the court conducts the entire examination, it should require counsel to 

submit proposed voir dire questions before trial to permit the court to incorporate additional questions at the appropriate places in this 

outline. 

1. Have the jury panel sworn. 

2. Explain to the jury panel that the purpose of the voir dire examination is 

(a) to enable the court to determine whether any prospective 

juror should be excused for cause; and 

(b) to enable counsel for the parties to exercise their individual 

judgment with respect to peremptory challenges—that is, 

challenges for which no reason need be given. 

3. Explain to prospective jurors that presenting the evidence is 

expected to take days, and ask if this presents a 

special problem for any of them. 

4. Read or summarize the indictment. 

5. Ask if any member of the panel has heard or read anything about the 

case. 

6. Ask counsel for the government to introduce himself or herself and 

counsel associated with the trial, as well as all the witnesses who will 

testify in the government’s presentation of its case in chief. Ask if the 

jurors 

(a) know any of these persons; 

NOTE

Fed. R. Crim P. 

24(a)(1) provides 

that the court “may 

examine prospective jurors or may 

permit the attorneys for the parties 

to do so.”
Section 2.06: Standard voir dire questions—criminal 

90 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(b) had any business dealings with them or were represented by 

them or members of their firms; and 

(c) had any other similar relationship or business connection with 

any of them. 

7. Ask counsel for each defendant to introduce himself or herself and 

indicate any witnesses that the defendant may choose to call. Ask if 

the jurors 

(a) know any of these persons; 

(b) had any business dealings with them or were represented by 

them or members of their firms; and 

(c) had any other similar relationship or business connection with 

any of them. 

8. Ask prospective jurors: 

(a) Have you ever served as a juror in a criminal or civil case or as 

a member of a grand jury in either a federal or state court? 

(b) Have you, any member of your family, or any close friend ever 

been employed by a law enforcement agency? 

(c) If you answer yes to [either of] the following question[s], or if 

you do not understand the question[s], please come forward, 

be seated in the well of the courtroom, and be prepared to 

discuss your answer with the court and counsel at the bench. 

(1) Have you ever been involved, in any court, in a criminal 

matter that concerned yourself, any member of your family, or a close friend either as a defendant, a witness, or a 

victim? 

(2)[Only if the charged crime relates to illegal drugs or narcotics, ask:] 

 Have you yourself, any member of your family, or any 

close friend had any experience involving the use or possession of illegal drugs or narcotics? 

(d) If you are selected to sit on this case, will you be able to render 

a verdict solely on the evidence presented at the trial and in the 

context of the law as I will give it to you in my instructions, 

disregarding any other ideas, notions, or beliefs about the law 

that you may have encountered in reaching your verdict? 

(e) Is there any member of the panel who has any special disability or problem that would make serving as a member of this 

jury difficult or impossible? 
Section 2.06: Standard voir dire questions—criminal 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 91

 [At this point, if the court is conducting the entire examination, it 

should ask those questions suggested by counsel that in the 

opinion of the court are appropriate.] 

(f) Having heard the questions put to you by the court, does any 

other reason suggest itself to you as to why you could not sit 

on this jury and render a fair verdict based on the evidence 

presented to you and in the context of the court’s instructions 

to you on the law? 

9. If appropriate, permit counsel to conduct additional direct voir dire 

examination, subject to such time and subject matter limitations as 

the court deems proper, or state to counsel that if there are additional 

questions that should have been asked or were overlooked, counsel 

may approach the bench and discuss them with the court. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 93

2.07 Preliminary jury instructions— 

criminal case 

These suggested instructions are designed to be given following the swearing of the jury. They are general and may require modification in light of the 

nature of the particular case. They are intended to give the jury, briefly and 

in understandable language, information to make the trial more meaningful. Other instructions may be given, as the need arises, at appropriate 

points during the trial. Many circuits have developed model or pattern jury 

instructions, and judges should consult the instructions that have been 

prepared for their circuits. 

Members of the jury: Now that you have been sworn, I will give you some 

preliminary instructions to guide you in your participation in the trial. 

Duty of the jury 

It will be your duty to find from the evidence what the facts are. You and you 

alone will be the judges of the facts. You will then have to apply to those 

facts the law as the court will give it to you. You must follow that law 

whether you agree with it or not.

 Nothing the court may say or do during the course of the trial is intended 

to indicate, or should be taken by you as indicating, what your verdict 

should be. 

Evidence 

The evidence from which you will find the facts will consist of the testimony 

of witnesses, documents and other things received into the record as exhibits, 

and any facts that the lawyers agree to or stipulate to or that the court may 

instruct you to find. 

 Certain things are not evidence and must not be considered by you. I will 

list them for you now. 

1. Statements, arguments, and questions by lawyers are not evidence. 

2. Objections to questions are not evidence. Lawyers have an obligation 

to their clients to make objections when they believe evidence being 

offered is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is 

received for a limited purpose only, you must follow that instruction. 

3. Testimony that the court has excluded or told you to disregard is not 

evidence and must not be considered. 
Section 2.07: Preliminary jury instructions—criminal case 

94 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

4. Anything you may have seen or heard outside the courtroom is not 

evidence and must be disregarded. You are to decide the case solely 

on the evidence presented here in the courtroom. 

 There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that 

other facts exist. I will give you further instructions on these as well as other 

matters at the end of the case, but keep in mind that you may consider both 

kinds of evidence. 

 It will be up to you to decide which witnesses to believe, which witnesses 

not to believe, and how much of any witness’s testimony to accept or reject. I 

will give you some guidelines for determining the credibility of witnesses at 

the end of the case. 

Rules for criminal cases 

As you know, this is a criminal case. There are three basic rules about a 

criminal case that you must keep in mind. 

 First, the defendant is presumed innocent until proven guilty. The indictment brought by the government against the defendant is only an accusation, 

nothing more. It is not proof of guilt or anything else. The defendant therefore starts out with a clean slate. 

 Second, the burden of proof is on the government until the very end of 

the case. The defendant has no burden to prove his or her innocence, or to 

present any evidence, or to testify. Since the defendant has the right to remain 

silent, the law prohibits you from arriving at your verdict by considering that 

the defendant may not have testified. 

 Third, the government must prove the defendant’s guilt beyond a reasonable doubt. I will give you further instructions on this point later, but bear in 

mind that in this respect a criminal case is different from a civil case. 

Summary of applicable law 

In this case the defendant is charged with ____________. I will give you detailed instructions on the law at the end of the case, and those instructions 

will control your deliberations and decision. But in order to help you follow 

the evidence, I will now give you a brief summary of the elements of the offense that the government must prove to make its case. 

[Summarize the elements of the offense.] 

Conduct of the jury 

Now, a few words about your conduct as jurors. 

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during 

the trial you must not conduct any independent research about this case, the 

matters in the case, and the individuals or corporations involved in the case. 
Section 2.07: Preliminary jury instructions—criminal case 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 95

In other words, you should not consult dictionaries or reference materials, 

search the Internet, websites, or blogs, or use any other electronic tools to 

obtain information about this case or to help you decide the case. Please do 

not try to find out information from any source outside the confines of this 

courtroom. 

Until you retire to deliberate, you may not discuss this case with anyone, 

even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with 

anyone else until you have returned a verdict and the case is at an end. 

I know that many of you use cell phones, Blackberries, the Internet, and 

other tools of technology. You also must not talk to anyone at any time 

about this case or use these tools to communicate electronically with anyone 

about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, or through any blog or website, 

including Facebook, Google+, My Space, LinkedIn, or YouTube. You may 

not use any similar technology of social media, even if I have not specifically 

mentioned it here. I expect you will inform me as soon as you become aware 

of another juror’s violation of these instructions.1

 A juror who violates these 

restrictions jeopardizes the fairness of these proceedings, and a mistrial 

could result, which would require the entire trial process to start over. 

 Finally, do not form any opinion until all the evidence is in. Keep an open 

mind until you start your deliberations at the end of the case. 

 I hope that for all of you this case is interesting and noteworthy. 

 [If the court decides to allow note taking, state:] 

 If you want to take notes during the course of the trial, you may do so. 

However, it is difficult to take detailed notes and pay attention to what the 

witnesses are saying at the same time. If you do take notes, be sure that your 

note taking does not interfere with your listening to and considering all of 

the evidence. Also, if you do take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the 

end of the day—be sure to leave them in the jury room. 

 If you choose not to take notes, remember that it is your own individual 

responsibility to listen carefully to the evidence. You cannot give this respon- 

 1. Taken from the “Proposed Model Jury Instructions: The Use of Electronic Technology 

to Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference 

Committee on Court Administration and Case Management (June 2012). See Memorandum, 

“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Administration and Case Management to all United States District Court Judges (Aug. 6, 2012). 

See also “Strategies for Preventing Jurors’ Use of Social Media During Trials and Deliberations” in Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management 5–10 (Federal 

Judicial Center Nov. 22, 2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/ 

DunnJuror.pdf/$file/DunnJuror.pdf. 
Section 2.07: Preliminary jury instructions—criminal case 

96 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

sibility to someone who is taking notes. We depend on the judgment of all 

members of the jury; you all must remember the evidence in this case.2

Course of the trial 

The trial will now begin. First, the government will make an opening statement, which is simply an outline to help you understand the evidence as it 

comes in. Next, the defendant’s attorney may, but does not have to, make an 

opening statement. Opening statements are neither evidence nor arguments. 

 The government will then present its witnesses, and counsel for the defendant may cross-examine them. Following the government’s case, the defendant may, if he [she] wishes, present witnesses whom the government may 

cross-examine. After all the evidence is in, the attorneys will present their 

closing arguments to summarize and interpret the evidence for you, and the 

court will instruct you on the law.3 After that, you will retire to deliberate on 

your verdict. 

Other FJC sources 

Pattern Criminal Jury Instructions 1–10 (1987) 

For a discussion of techniques for assisting the jury in civil trials, some of 

which may also be helpful in criminal trials, see Civil Litigation Management Manual 111–12 (Judicial Conference of the United States, 2d ed. 

2010) and Manual for Complex Litigation, Fourth 154–60 (2004) 

For a discussion of jury-related problems in criminal cases, see Manual on 

Recurring Problems in Criminal Trials 9–22 (Tucker Carrington & Kris 

Markarian eds., 6th ed. 2010) 

 

 2. For another sample instruction on note taking, see Civil Litigation Management 

Manual 374–75 (Judicial Conference of the United States 2001). 

 3. Some judges may wish to give some instructions before closing arguments. See Fed. R. 

Crim. P. 30. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 97

2.08 General instructions to jury at end of 

criminal case 

Fed. R. Crim. P. 30 

Introductory note 

Fed. R. Crim. P. 30 outlines the procedure for the submission and consideration of the parties’ requests for specific jury instructions. It requires 

1. that the court inform the parties before closing arguments of its proposed action upon the instructions requested by counsel; and 

2. that the court give counsel adequate opportunity to object to the 

court’s instructions outside the hearing of the jury or, if requested, 

outside the presence of the jury. 

 There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge conference with counsel during trial. At that conference the tendered instructions are discussed 

and are accepted, rejected, or modified by the court. 

 Other courts, without holding a charge conference, prepare a set of proposed instructions from those tendered by counsel. These courts then give a 

copy of the proposed instructions to all counsel and permit counsel to take 

exception to the instructions. Thereafter, the court may revise its instructions if convinced by counsel’s objections that the instructions should be 

modified. 

 Still other courts require counsel to confer during trial and to agree, to the 

extent that they can, on the instructions that should be given. The court 

then considers only those instructions upon which the parties cannot agree. 

 The court may, of course, give an instruction to the jury that neither 

party has tendered. 

 While the court is free to ignore tendered instructions and to instruct the 

jury sua sponte, the usual practice is for the court to formulate the final instructions with the assistance of counsel and principally from the instructions counsel tendered. 

 Local practice varies as to whether a written copy of the instructions is 

given to the jury for use during its deliberations. Many courts always give the 

jury a written copy of the instructions. Some courts have the instructions recorded as they are given in court and permit the jury to play them back in 

the jury room. Some courts do neither but will repeat some or all of the instructions in response to a request from the jury. 

 Note that the court may instruct the jury either before or after closing arguments, or at both times. Fed. R. Crim. P. 30(c). 
Section 2.08: General instructions to jury at end of criminal case 

98 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Outline of instructions 

Instructions delivered at the end of a case consist of three parts: first, general rules that define and control the jury’s duties in a criminal case; second, 

definitions of the elements of the offenses charged in the indictment (information); third, rules and guidelines for jury deliberation and return of 

verdict. Many circuits have developed model or pattern jury instructions, 

and judges should consult the instructions that have been prepared for use 

in their circuits. 

A. General rules 

1. Outline the duty of the jury: 

(a) to find the facts from admitted evidence; 

(b) to apply the law as given by the court to facts as found by the jury; 

and 

(c) to decide the case on the evidence and the law, regardless of personal opinions and without bias, prejudice, or sympathy. 

2. Clearly enunciate the three basic rules in a criminal case: 

(a) presumption of innocence; 

(b) burden of proof on government; and 

(c) proof beyond a reasonable doubt. 

3. Indicate the evidence to be considered: 

(a) sworn testimony of witnesses; 

(b) exhibits; 

(c) stipulations; and 

(d) facts judicially noticed. 

4. Indicate what is not evidence: 

(a) arguments and statements of counsel; 

(b) questions to witnesses; 

(c) evidence excluded by rulings of the court; and 

(d) indictment (information). 

B. Define with precision and with specific consideration of the law of your 

circuit the elements of each offense to be submitted to the jury and of 

each defense the jury is to consider. 

C. Jury procedure 

1. Explain the selection and duty of the foreperson. 

2. Explain the process of jury deliberation: 

(a) rational discussion of the evidence by all jurors for the purpose of 

reaching a unanimous verdict; 
Section 2.08: General instructions to jury at end of criminal case 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 99

(b) each juror is to decide the case for himself or herself in the context 

of the evidence and the law, with proper consideration of other 

jurors’ views; 

(c) jurors may reconsider their views if persuaded by rational discussion but not solely for the sake of reaching a unanimous verdict. 

3. The verdict must be unanimous on each count (explain verdict form 

if used).1

4. The jury’s communications with the court during deliberations must 

be in writing and signed by the foreperson. 

5. The jury must not disclose how it stands numerically or otherwise on 

the question of guilt or innocence. 

6. Consider giving the jury the following instruction: 

 During your deliberations, you must not communicate with or 

provide any information to anyone by any means about this case. 

You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, or computer, 

the Internet, any Internet service, or any text or instant messaging 

service, any Internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, YouTube or Twitter, to communicate 

to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, 

you cannot talk to anyone on the phone, correspond with anyone, 

or electronically communicate with anyone about this case. You 

can only discuss the case in the jury room with your fellow jurors 

during deliberations. I expect you will inform me as soon as you 

become aware of another juror’s violation of these instructions. 

 You may not use these electronic means to investigate or 

communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social 

media might be wrong, incomplete, or inaccurate. You are only 

permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you 

have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by 

 

 1. If special verdict forms or jury interrogatories are used, instruct the jury on how to 

answer them. Such devices should be used with caution, but they may be useful in multidefendant or other complex cases, or where jury findings (e.g., drug weights) affect statutory 

maximums. Note that special verdicts and jury interrogatories in criminal cases are not 

covered by the criminal rules of procedure or by statute, so the court should be familiar with 

the law of its circuit. 
Section 2.08: General instructions to jury at end of criminal case 

100 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

you and not your fellow jurors or the parties in the case. This 

would unfairly and adversely impact the judicial process.2 A juror 

who violates these restrictions jeopardizes the fairness of these 

proceedings, and a mistrial could result, which would require the 

entire trial process to start over.

D. Consider providing the jury with a written copy or transcript of the jury 

instructions. 

Other FJC sources 

Pattern Criminal Jury Instructions (1987) 

For a discussion of techniques for assisting the jury in civil trials, some of 

which may also be helpful in criminal trials, see Civil Litigation Management Manual 111–12 (Judicial Conference of the United States 2d ed. 

2010) and Manual for Complex Litigation, Fourth 154–60 (2004) 

For a discussion of jury-related problems in criminal cases, see Manual on 

Recurring Problems in Criminal Trials 9–22 (Tucker Carrington & Kris 

Markarian eds., 6th ed. 2010)

 

 2. Taken from the “Proposed Model Jury Instructions: The Use of Electronic Technology 

to Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference 

Committee on Court Administration and Case Management (June 2012). See Memorandum, 

“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Administration and Case Management to all United States District Court Judges (Aug. 6, 2012). 

See also “Strategies for Preventing Jurors’ Use of Social Media During Trials and Deliberations” in Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management 5–10 (Federal 

Judicial Center Nov. 22, 2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/ 

DunnJuror.pdf/$file/DunnJuror.pdf. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 101

2.09 Verdict—criminal 

Fed. R. Crim. P. 31 and 43

A. Reception of unsealed verdict 

1. Upon announcement by the jury that it has reached a verdict, have 

all interested parties convene in open court to receive the verdict. 

The presence of the defendant(s) is required under Fed. R. Crim. P. 

43(a), unless one of the exceptions in Fed. R. Crim. P. 43(b) or (c) applies. Any victims of the offense should be given “reasonable, accurate, and timely notice” of the return of verdict so that they can be 

present. See 18 U.S.C. § 3771(a)(2) and (3). 

2. When court is convened, announce that the jury is ready to return its 

verdict(s), and instruct the deputy marshal (or bailiff) to have the jurors enter and assume their seats in the jury box. 

3. If not already known, inquire of the jury who speaks as its foreperson. 

4. Ask the foreperson if the jury has unanimously agreed on its verdict. 

[Note: If the response is anything other than an unqualified yes, the 

jury should be returned without further inquiry to continue its deliberations.] 

5. Instruct the foreperson to hand the verdict form(s) to the clerk to be 

delivered to you for inspection before publication. 

6. Inspect the verdict form(s) to ensure regularity. [Note: If the verdict 

form(s) is (are) not properly completed, take appropriate corrective 

action before publication.] 

7. Explain to the jurors that their verdict(s) will now be “published”—

that is, read aloud in open court. 

8. Instruct the jury to pay close attention as the verdict(s) is (are) published; explain that, following publication, the jury may be “polled”—

that each juror may be asked, individually, whether the verdict(s) as 

published constituted his or her individual verdict(s) in all respects. 

9. Publish the verdict(s) by reading it (them) aloud (or by having the 

clerk do so). 

10. If either party requests, or on your own motion, poll the jury by asking (or by having the clerk ask) each juror, by name or number, 

whether the verdict(s) as published constituted his or her individual 

verdict(s) in all respects. (Fed. R. Crim. P. 31(d) requires polling upon 

request.) 

11. If polling verifies unanimity, direct the clerk to file and record the 

verdict, and discharge the jurors with appropriate instructions concerning their future service, if any. 
Section 2.09: Verdict—criminal 

102 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

12. If polling results in any doubt as to unanimity, make no further inquiry and have no further discussions with the jury; rather, confer 

privately, on the record, with counsel and determine whether the 

jury should be returned for further deliberations or a mistrial should 

be declared. 

B. Reception of sealed verdict 

 In some cases a sealed verdict may be delivered to the clerk for subsequent “reception” and publication in open court when the jury, the 

judge, and all necessary parties are present. For example, on some occasions an indispensable party may not be available to receive a verdict 

when the jury reaches agreement. This may occur when the jury reaches 

its verdict late in the evening, a defendant is absent from the courtroom 

because of illness, or the judge is unavailable. In these instances, the 

verdict may be sealed and the jurors allowed to return home. A sealed 

verdict may also be appropriate when the jury reaches a verdict as to one 

defendant but not as to another or when the jury wishes to return a partial verdict. 

1. Upon announcement by the jury that it has reached a verdict, have 

all interested and available parties convene in open court and on the 

record. The presence of the defendant(s) is required under Fed. R. 

Crim. P. 43(a), unless one of the exceptions in Fed. R. Crim. P. 43(b) or 

(c) applies. Any victims of the offense should be given “reasonable, 

accurate, and timely notice” of the return of verdict so that they can 

be present. See 18 U.S.C. § 3771(a)(2) and (3). 

2. When court is thus convened, announce that the jury is ready to return its verdict(s) and explain that a sealed verdict will be taken in accordance with the following procedure: 

(a) Instruct the deputy marshal (or bailiff) to usher the jurors into the 

courtroom to assume their seats in the jury box. 

(b) If not already known, inquire of the jury who speaks for it as its 

foreperson. 

(c) Ask the foreperson if the jury has unanimously agreed on its verdict. 

[Note: If the response is anything other than an unqualified yes, 

the jury should be returned without further inquiry to continue 

its deliberations.] 

(d) Poll the jurors individually on the record. 

(e ) Explain to the jury that a sealed verdict will be taken, and further 

explain why that procedure has become necessary in the case. 

(f) Direct the clerk to hand a suitable envelope to the foreperson. Instruct the foreperson to place the verdict form(s) in the envelope, 

to seal the envelope, and to hand it to the clerk for safekeeping. 
Section 2.09: Verdict—criminal 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 103

 [Note: In the event the jury will not be present at the opening of 

the verdict, it is recommended that each juror sign the verdict 

form(s).] 

(g) Recess the proceedings, instructing the jury and all interested 

parties to return at a fixed time for the opening and formal reception of the verdict. Instruct that, in the interim, no member of the 

jury should have any conversation with any other person, including any other juror, concerning the verdict or any other aspect of 

the case. 

(h) When court is again convened for reception of the verdict, have 

the clerk hand the sealed envelope to the jury foreperson. 

(i) Instruct the foreperson to open the envelope and verify that the 

contents consist of the jury’s verdict form(s) without modification 

or alteration of any kind. 

(j) Follow the steps or procedures outlined in paragraphs A.5 

through A.12, supra. 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 72–74 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 105

2.10 Trial and post-trial motions 

Fed. R. Crim. P. 29, 33, 34, and 45(b) 

Effective December 1, 2005, Fed. R. Crim. P. 29, 33, and 34 were amended to 

eliminate the restriction that a court may extend the time to make a motion 

under these rules only if it acts within the seven-day period the defendant 

has to file the motion or seek an extension. Motions for extending time to file 

under these rules are now covered by Rule 45(b). 

 Also note that if the motion occurs during a “public court proceeding,” 

any victims of the offense must be notified and allowed to attend. If the motion is granted and the defendant might be released, victims would have the 

right to “be reasonably heard.” See 18 U.S.C. § 3771(a)(2)–(4). 

 The case law on this subject will vary from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the 

practice of the district, and the preferences of the individual judge. 

A. Fed. R. Crim. P. 29—Motion for Judgment of Acquittal 

1. Timing 

(a) The motion may be made by the defendant or the court before 

submission to the jury, after the evidence on either side is closed. 

Fed. R. Crim. P. 29(a). 

(b) The motion may also be made or renewed (if the court earlier reserved decision under Fed. R. Crim. P. 29(b)) within seven days of 

a guilty verdict or discharge of the jury, whichever is later, or 

within such further time as the court may fix. Fed. R. Crim. P. 

29(c)(1) and 45(b); Carlisle v. United States, 517 U.S. 416 (1996). 

(c) Failure to make a Fed. R. Crim. P. 29 motion prior to submission of 

the case to the jury does not waive the defendant’s right to move 

after the jury returns a guilty verdict or is discharged without 

reaching a verdict. Fed. R. Crim. P. 32(c)(3). 

2. Procedure 

(a) The motion should be heard out of the presence of the jury. 

Whether an oral hearing will be held or the motion will be decided 

on written submissions alone is a matter within the court’s discretion. If the court reserved decision on a motion that is later renewed, “it must decide the motion on the basis of the evidence at 

the time the ruling was reserved.” Fed. R. Crim. P. 29(b). 

(b) If the defendant moves for a judgment of acquittal, but not for a 

new trial under Fed. R. Crim. P. 33, the district court may not grant 

a new trial in lieu of granting the motion for judgment of acquittal. If the motion for acquittal is granted and the defendant has 

moved for a new trial, the court must conditionally determine 
Section 2.10: Trial and post-trial motions 

106 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

whether any motion for new trial should be granted in case the 

judgment of acquittal is vacated or reversed on appeal. The reasons for that determination must be specified. See Fed. R. Crim. 

P. 29(d)(1). 

(c) When the court grants a motion for judgment of acquittal, it 

should consider whether the evidence was sufficient to sustain 

conviction of a lesser offense necessarily included in the offense 

charged. 

3. Standard 

(a) The motion shall be granted for “any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 

29(a). 

(b) In resolving the motion, the court should not assess the credibility of witnesses, weigh the evidence, or draw inferences of fact 

from the evidence.1

 The role of the court is simply to decide 

whether the evidence viewed in the light most favorable to the 

government was sufficient for any rational trier of fact to find guilt 

beyond a reasonable doubt. 

Caution: Consult your circuit’s law for any special rules governing 

consideration of the evidence. 

B. Fed. R. Crim. P. 33—Motion for New Trial 

1. Timing 

 Except as noted below with respect to newly discovered evidence, the 

motion must be made within seven days after a verdict or finding of 

guilty, unless the court fixes a longer period. 

Exception: A motion for a new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. If made during the pendency of an appeal, the motion 

may be granted only if the case is remanded. 

2. Procedure 

 Whether an oral hearing will be held or the motion will be decided on 

written submissions alone is a matter within the discretion of the 

court. The propriety of holding a hearing will depend necessarily on 

the grounds invoked. This motion may be made only by the defendant and cannot be granted by the court sua sponte. Fed. R. Crim. P. 

33(b). 

3. Standard 

(a) Any alleged error in the trial that could be raised on appeal may 

be raised on a motion for a new trial, and the motion may be 

 

 1. Of course, these restrictions do not apply in a bench trial. However, the standard for 

deciding the motion remains the same. 
Section 2.10: Trial and post-trial motions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 107

granted “if the interest of justice so requires,” that is, if letting the 

verdict stand would result in a miscarriage of justice. Fed. R. Crim. 

P. 33(a). 

(b) When the motion for a new trial is made on the ground that the 

verdict is contrary to the weight of the evidence, the motion 

should be granted only in exceptional cases where the evidence 

preponderates heavily against the verdict. Unlike a motion for 

judgment of acquittal, a motion for a new trial does not require 

the court to view the evidence in the light most favorable to the 

government. Some circuits hold that the court has broad power to 

weigh the evidence and consider the credibility of witnesses. 

However, other circuits reject the idea of the court as a “thirteenth 

juror” and limit the extent to which courts may reweigh the evidence. Courts should look to the law of their circuit on this issue. 

(c) For a motion based on newly discovered evidence, a defendant 

must show that the evidence is newly discovered and was unknown to the defendant at the time of trial; failure to discover the 

evidence sooner was not due to lack of diligence by the defendant; the evidence is material, not merely cumulative or impeaching; and the new evidence would likely lead to acquittal at a 

new trial. Many circuits have held that such motions are disfavored and should be granted with caution. 

4. Findings and conclusions 

 The court’s findings and conclusions should be placed on the record. 

An order denying a new trial is appealable as a final decision under 

28 U.S.C. § 1291. An order granting a new trial may be appealed by 

the government under 18 U.S.C. § 3731.

C. Fed. R. Crim. P. 34—Motion for Arrest of Judgment 

1. Timing 

 The motion must be made within seven days after a verdict or finding of guilty, or after a plea of guilty or nolo contendere, unless the 

court fixes a longer period. 

2. Procedure 

 Whether an oral hearing will be held or the motion will be decided on 

written submissions alone is a matter within the discretion of the 

court. Despite the fact that this motion raises jurisdictional issues, after trial it cannot be granted by the court sua sponte but may only be 

made by the defendant. Compare Fed. R. Crim. P. 12(b)(2) (same issues raised here may be raised pretrial by either the defendant or the 

court). 
Section 2.10: Trial and post-trial motions 

108 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

3. Standard 

 The motion is resolved upon examination of the “record” (i.e., the indictment or information, the plea or the verdict, and the sentence). 

The court does not consider the evidence produced at trial. A motion 

for arrest of judgment is based only on one or both of the following 

contentions: (i) the indictment or information does not charge an offense or (ii) the court was without jurisdiction over the offense 

charged. Fed. R. Crim. P. 34(a)(1) and (2). 

Other FJC sources 

For a discussion of techniques in managing motions in civil trials, some of 

which may be helpful in criminal trials, see Civil Litigation Management 

Manual 51–67 (Judicial Conference of the United States, 2d ed. 2010) 

Manual on Recurring Problems in Criminal Trials 73 (Tucker Carrington & 

Kris Markarian eds., 6th ed. 2010) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 109

2.11 Release or detention pending 

sentence or appeal 

18 U.S.C. §§ 3142, 3143, 3145; Fed. R. Crim. P. 46; 

Fed. R. App. P. 9 

A. Release or detention pending imposition or execution of sentence 

1. If the defendant was in custody at the time of sentencing, there will 

ordinarily be no question of release after sentencing to a term of imprisonment. 

2. If the defendant was at liberty at the time of sentencing, invite counsel for the defendant to address the question of whether continued 

release is appropriate. Invite counsel for the government to respond. 

If any victims of the offense are present, give them the opportunity 

“to be reasonably heard.” 18 U.S.C. § 3771(a)(4). 

3. Except for those individuals subject to paragraph 4 below, a person 

may be released while awaiting imposition or execution of sentence 

only if the judge finds “by clear and convincing evidence that the 

person is not likely to flee or pose a danger to the safety of any other 

person or the community.” 18 U.S.C. § 3143(a)(1). “The burden of establishing that the defendant will not flee or pose a danger to any 

other person or to the community rests with the defendant.” Fed. R. 

Crim. P. 46(c). 

 Release shall be in accordance with the provisions of 18 U.S.C. 

§ 3142(b) or (c) (governing release pending trial). This authority may 

be used to permit an offender to surrender at a Bureau of Prisons institution as well as to permit a delay before a defendant begins to 

serve the sentence. 

4. Persons convicted of a crime of violence, an offense punishable by 

life imprisonment or death, or a drug offense for which the maximum 

term of imprisonment is ten years or more shall not be released 

pending imposition or execution of sentence unless the judge finds 

by clear and convincing evidence that the person is not likely to flee 

or to pose a danger to any other person or the community, and

(i) there is a substantial likelihood that a motion for acquittal or new 

trial will be granted or (ii) an attorney for the government has recommended that no sentence of imprisonment be imposed upon the 

person. 18 U.S.C. § 3143(a)(2). Release may also be authorized “if it is 

clearly shown that there are exceptional reasons why such person’s 

detention would not be appropriate.” See 18 U.S.C. § 3145(c). 
Section 2.11: Release or detention pending sentence or appeal 

110 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

B. Release or detention pending appeal by the defendant 

1. Except for those individuals subject to paragraph 2 below, if the defendant appeals, he or she may be released pending appeal only if 

the judge finds 

(A) by clear and convincing evidence that the person is not likely to flee or 

pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and 

(B) that the appeal is not for purpose of delay and raises a substantial 

question1

 of law or fact likely to result22 in— 

(i) reversal, 

(ii) an order for a new trial, 

(iii) a sentence that does not include a term of imprisonment, or 

(iv) a reduced sentence to a term of imprisonment less than the total 

of the time already served plus the expected duration of the appeal process. 

 18 U.S.C. § 3143(b). 

 Release under § 3143(b) shall be in accordance with the provisions of 

18 U.S.C. § 3142(b) or (c) (governing release pending trial). If the defendant is to be released because of the likelihood of a reduced sentence under § 3143(b)(1)(B)(iv), “the judicial officer shall order the 

 

 1. A “substantial question” has been defined differently by different circuits. Compare

United States v. Giancola, 754 F.2d 898, 900–01 (11th Cir. 1985) (per curiam) (“a ‘close’ question or one that very well could be decided the other way”), with United States v. Handy, 761 

F.2d 1279, 1281–83 (9th Cir. 1985) (“fairly debatable”). Most circuits that have considered the 

issue have followed Giancola: United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991); 

United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (per curiam); United States v. 

Shoffner, 791 F.2d 586, 589–90 (7th Cir. 1986) (per curiam); United States v. Pollard, 778 F.2d 

1177, 1182 (6th Cir. 1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United 

States v. Powell, 761 F.2d 1227, 1231–34 (8th Cir. 1985) (en banc); United States v. ValeraElizondo, 761 F.2d 1020, 1024–25 (5th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952 

(10th Cir. 1985) (en banc). The Third Circuit has followed Handy, which is generally regarded as posing less of a barrier to the appellant seeking release. United States v. Smith, 

793 F.2d 85, 89–90 (3d Cir. 1986). The Second Circuit has expressed the view that the two 

standards are not significantly different but has indicated a preference for the Giancola

formulation. United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985). 

 2. “Likely to result” means likely to result if the defendant prevails on the substantial 

question. United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985), and cases cited supra note 1. 

A substantial question concerning only harmless error would not meet this requirement. 

“Likely” has been defined by some circuits as “more probable than not.” United States v. 

Bayko, 774 F.2d 516, 522 (1st Cir. 1985); United States v. Valera-Elizondo, 761 F.2d 1020, 

1024–25 (5th Cir. 1985); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United 

States v. Bilanzich, 771 F.2d 292, 299 (7th Cir. 1985); United States v. Powell, 761 F.2d 1227, 

1232–34 (8th Cir. 1985) (en banc). 
Section 2.11: Release or detention pending sentence or appeal 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 111

detention terminated at the expiration of the likely reduced sentence.” 

 If any victims of the offense are present, they must be given the opportunity “to be reasonably heard” regarding the release of the defendant. 18 U.S.C. § 3771(a)(4). 

2. Detention is mandatory for persons appealing from a sentence to a 

term of imprisonment for a crime of violence, an offense punishable 

by life imprisonment or death, or a drug offense for which the maximum term of imprisonment is ten years or more. 18 U.S.C. 

§ 3143(b)(2). Release may be authorized, however, in “exceptional 

cases.” See 18 U.S.C. § 3145(c). 

C. Government appeal of sentence 

1. After sentence of imprisonment: If the defendant does not appeal 

and the government appeals a sentence pursuant to 18 U.S.C. 

§ 3742(b), release pending appeal may not be granted. 18 U.S.C. 

§ 3143(c)(1). 

2. After sentence not including imprisonment: If the government appeals pursuant to 18 U.S.C. § 3742(b) from a nonprison sentence, the 

government should move for a redetermination of the defendant’s 

status. Release or detention is to be determined in accordance with 

18 U.S.C. § 3142 (governing release or detention pending trial). 18 

U.S.C. § 3143(c)(2); see supra section 1.03: Release or detention 

pending trial. Place the reasons for the determination on the record. 

If any victims of the offense are in the courtroom, they must be given 

the opportunity “to be reasonably heard” regarding the release of 

the defendant. 18 U.S.C. § 3771(a)(4). 

3. Note that, except for a sentence imposed by a magistrate judge, the 

government’s appeal must be approved personally by the Attorney 

General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General. 18 U.S.C. § 3742(b) and (g). 

D. Burden of proof 

 “The burden of establishing that the defendant will not flee or pose a 

danger to any other person or to the community rests with the defendant.” Fed. R. Crim. P. 46(c). The rules of evidence do not apply. Fed. R. 

Evid. 1101(d)(3). A testimonial hearing may be required. If there are any 

victims of the offense, they must be provided notice of such a hearing 

and allowed to attend, and be given an opportunity “to be reasonably 

heard.” 18 U.S.C. § 3771(a)(2)–(4). 

E. Written order required 

 If the defendant is detained or conditions of release are imposed, the 

reasons must be stated in writing or on the record. Fed. R. App. P. 9(b). If 
Section 2.11: Release or detention pending sentence or appeal 

112 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

the defendant is released over the government’s objection, reasons 

should be placed on the record to facilitate appellate review. 

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984, at 36–43 (3d ed. 2006) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 113

3.01 Death penalty procedures 

18 U.S.C. §§ 3591–3595; 21 U.S.C. § 848(e)–(q) 

[Note: The Crime Victims’ Rights Act, 18 U.S.C. § 3771(e), specifies that when 

the victim of a crime is deceased, “the representatives of the crime victim’s 

estate, family members, or any other persons appointed as suitable by the 

court, may assume the crime victim’s rights.” Those rights include notification of and attendance at “any public court proceeding . . . involving the 

crime,” and the opportunity to be “reasonably heard” at any such proceeding “involving release, plea, [or] sentencing.” § 3771(a)(2)–(4). The court 

may want to consult with the prosecution about who will assume the victim’s 

rights, especially if there are a large number of persons who want to do so.] 

 This section provides an outline of procedures for imposing the death 

penalty authorized in various federal statutes. Capital cases can raise complex issues, and a number of problems may arise. This outline is offered to 

provide basic guidance for consideration.1

 Effective Sept. 13, 1994, the Federal Death Penalty Act of 1994 established procedures for imposing any death penalty under federal law (except 

for prosecutions under the Uniform Code of Military Justice). See 18 U.S.C. 

§§ 3591–3595. These provisions largely duplicate, but did not originally re-

 

 1. Judges may want to look at appellate court decisions that have examined various aspects of 18 U.S.C. §§ 3591–3595. See, e.g., Jones v. United States, 119 S. Ct. 2090 (1999), aff’g

132 F.3d 232 (5th Cir. 1998); United States v. Rodriguez, 581 F.3d 775 (8th Cir. 2009) (affirmed); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2d Cir. 2008) 

(affirmed in relevant part); United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) (affirmed); 

United States v. Fulks, 454 F.3d 410 (4th Cir. 2006) (affirmed); United States v. Paul, 217 F.3d 

989 (8th Cir. 2000) (affirmed); United States v. Battle, 173 F.3d 1343 (11th Cir. 1999) (affirmed); United States v. Webster, 162 F.3d 308 (5th Cir. 1998) (affirmed); United States v. 

McVeigh, 153 F.3d 1166 (10th Cir. 1998) (affirmed). It may also be useful to examine decisions on death penalty procedures under 21 U.S.C. § 848. See United States v. Tipton, 90 F.3d 

861 (4th Cir. 1996) (affirmed); United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (remanded); United States v. Flores, 63 F.3d 1342 (5th Cir. 1995) (affirmed); United States v. 

Chandler, 996 F.2d 1073 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999). 

 The Federal Judicial Center has prepared a “Resource Guide for Managing Capital 

Cases, Volume I: Federal Death Penalty Trials,” by Molly Treadway Johnson and Laurel L. 

Hooper. The guide contains information on many more aspects of handling a capital case 

than can be covered here, is available on the Center’s website (www.fjc.gov or http://cwn.fjc. 

dcn/library/fjc_catalog.nsf), and is periodically updated. The website also includes a large 

collection of orders and other selected case materials from judges who have handled capital 

cases. Additional resource materials are added as they become available. See “Managing 

Federal Death Penalty Trials” in the FJC Resource Catalog at http://cwn.fjc.dcn/ 

library/fjc_catalog.nsf. The Center also issued a series of Chambers to Chambers in 1995 

and 1996 that discussed legal and practical issues unique to capital cases. The series drew 

upon the experiences of district court judges who have handled death penalty cases under 

section 848; the first issue includes the names of judges who have tried capital cases and 

may be contacted. 
Section 3.01: Death penalty procedures 

114 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

place,2

 the authorization and procedure for imposing the death penalty for 

certain drug-related killings in 21 U.S.C. § 848(e). However, effective March 

9, 2006, the procedural sections in § 848(g)–(r) were deleted, and capital offenses under § 848(e) will now be prosecuted under §§ 3591–3595. The information provided in this outline applies to capital cases under both statutes unless noted otherwise. 

 Killing someone in the course of a drug-related offense under 21 U.S.C. 

§ 848(e) appears to be a separate offense that must be charged and proved, 

not merely an aggravating factor to be considered in sentencing on the underlying drug offense.3

 When the death penalty is sought for an offense under 18 U.S.C. § 3591, the court should determine whether the relevant activity is a separate offense—or an element of the offense—that must be 

charged and proved. 

A. Pretrial 

1. Pursuant to 18 U.S.C. § 3005, when a defendant has been indicted 

for a capital offense, the court “shall promptly,4 upon the defendant’s request,” assign two counsel to the defendant, “of whom at 

least one shall be learned in the law applicable to capital cases.”5

 

 2. Nothing in the Federal Death Penalty Act of 1994 specifically repealed or superseded 

any part of section 848, and there are some differences in the statutes’ procedures and requirements. 

 3. Subsection (e) was added to 21 U.S.C. § 848 by the Anti-Drug Abuse Act of 1988, Pub. L. 

No. 10-690, § 7001(a), 102 Stat. 4181, 4387–88. The catch line of § 7001(a) was “Elements of 

Offense.” Moreover, other subsections refer to being found guilty of or pleading guilty to 

“an offense under subsection (e).” 21 U.S.C. § 848(i)(1), (j), (n). 

 4. The Judicial Conference of the United States recommends that the court appoint 

qualified counsel “at the outset” of a capital case, rather than waiting for the government to 

provide written notice that it intends to seek the death penalty. See Recommendation 1(b) in 

Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, May 1998 (prepared by the Subcommittee on Federal Death Penalty 

Cases, Committee on Defendant Services and adopted by the Judicial Conference September 15, 1998). See also In re Sterling-Suarez, 306 F.3d 1170, 1173 (1st Cir. 2002) (“learned 

counsel is to be appointed reasonably soon after the indictment and prior to the time that 

submissions are to be made to persuade the Attorney General not to seek the death penalty”); United States v. Boone, 245 F.3d 352, 359 (4th Cir. 2001) (right to two counsel “becomes available upon indictment for a capital crime and not upon the later decision by the 

government to seek or not to seek the death penalty”). Cf. United States v. Waggoner, 339 

F.3d 915, 917 (9th Cir. 2003) (agreeing in dicta that right commences “promptly upon the defendant’s request after the defendant is indicted for a capital crime”). But cf. United States v. 

Casseus, 282 F.3d 253, 256 (3d Cir. 2002) (finding harmless error where defendants’ requests 

for second counsel made promptly after indictment were not acted upon until after government decided not to seek death penalty a month and a half later).

 5. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for a discussion of whether more than two attorneys may be appointed under § 3005. See also McCullah,

76 F.3d at 1098 (no abuse of discretion to refuse to appoint additional counsel where district 

court found that two were adequate). For a discussion of compensation of counsel, investigators, and expert witnesses, see Chambers to Chambers, vol. 10, no. 1. Note that 21 U.S.C. 
Section 3.01: Death penalty procedures 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 115

2. The government must provide written notice to the court and the defendant that it will seek the death penalty, and it must identify which 

statutory and nonstatutory aggravating factors it intends to prove at 

“a reasonable time” before trial or acceptance by the court of a guilty 

plea.6

 18 U.S.C. § 3593(a); 21 U.S.C. § 848(h)(1). 

3. At least three days before commencement of trial, the defendant 

must receive a copy of the indictment and a list of the names and addresses of venire members and witnesses, unless the court finds by a 

preponderance of the evidence that providing the list may endanger 

any person. 18 U.S.C. § 3432. 

4. Arrange for a jury venire large enough to accommodate additional 

peremptory challenges (twenty for each side, see Fed. R. Crim. P. 

24(b)(1)), the length of time required for trial and penalty phases, 

and the likelihood that alternate jurors will be needed.7

5. Consider having venire members complete a juror questionnaire, 

and consider providing attorneys with the responses prior to jury selection. 

6. After familiarizing the venire members with jury service, explain the 

two-stage decision process. The following is a suggested explanation. 

 

§ 848(q)(10) was amended by the Antiterrorism and Effective Death Penalty Act of 1996 (effective April 24, 1996) to limit attorneys’ fees and costs for other services. In cases not affected by the Act, compensation for appointed counsel is not limited by Criminal Justice Act 

maximums. Effective March 9, 2006, § 848(q) has effectively been replaced by new 18 U.S.C. 

§ 3599 (“Counsel for financially unable defendants”). 

 6. For § 848(e) offenses prior to March 9, 2006, the government must identify and prove 

one aggravating factor from § 848(n)(1) plus at least one factor from § 848(n)(2)–(12). Section 3591 contains three groups of offenses for which death is authorized, and each group has 

a separate list of aggravating factors from which the government must identify and prove at 

least one. Additional factors from any list may be used, but only the one is required to impose the death penalty. See § 3593(e). The Fourth and Tenth Circuits have held that allowing 

the jury to find duplicative aggravating factors is prohibited and would require a new penalty phase. See Tipton, 90 F.3d at 898–901 (but affirming sentence because error was harmless in this case); McCullah, 76 F.3d at 1111–12 (remanded: prosecution submitted both 

§ 841(n)(1)(C) and § 841(n)(1)(D), which substantially overlap, and a nonstatutory aggravating factor that overlapped § 841(n)(1)(C)). See also United States v. McCullah, 87 F.3d 1136, 

1137–38 (10th Cir. 1996) (upon denial of rehearing and rehearing en banc, clarifying that 

overlapping aggravating factors are improper if supported by same underlying conduct, 

thus distinguishing Flores). But cf. Flores, 63 F.3d at 1372–73 (defendant’s conduct supported 

finding of both n(1)(A) (intentionally killed the victim) and n(1)(C) (intentionally engaged 

in conduct intending that the victim be killed) factors—defendant personally participated in 

the killings and hired others to help). The Fourth and Tenth Circuits rejected the claim that 

allowing the government to introduce nonstatutory aggravating factors violated separation 

of powers principles. 

7. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for discussion 

of this issue and of the juror questionnaire mentioned in the next paragraph. 
Section 3.01: Death penalty procedures 

116 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 Before we continue with the jury selection process, I will explain to 

you how a capital case proceeds. Potentially this case has two 

stages. The first requires the jury to consider whether or not the 

government has proved the charges brought against the defendant, __________, beyond a reasonable doubt. In this stage of 

the proceeding, the jury shall not consider any possible punishment that might be imposed. 

 If, at the conclusion of the first stage, the jury reports that it 

does not find the defendant, __________, guilty of the capital 

charge, then the jury’s responsibilities are at an end. This is so regardless of how the jury finds as to any other charges because the 

court decides the punishment for noncapital crimes. 

 If the jury reports that it finds the defendant, ________, guilty 

of the capital charge, then we proceed to a second stage: a sentencing hearing, at which the jury considers whether the death penalty should be imposed.8

 Now, during the sentencing hearing, the government has the 

opportunity to introduce evidence of aggravating factors that 

might make the conduct alleged in the capital count so serious as 

to merit imposition of the death penalty. The defendant has the 

opportunity to present mitigating factors about the crime or 

about himself [herself] that might suggest that the death penalty 

is not appropriate in this case. 

 No aggravating factor may be considered by the jury unless all 

jurors agree on that factor unanimously. Nor can the jury find in 

favor of the death penalty unless it also unanimously agrees that 

the unanimously-agreed-upon aggravating factors sufficiently 

outweigh any mitigating factors that one or more jurors believe 

exist. 

 Even if no one on the jury finds that any mitigating factors exist, the jury cannot find in favor of the death penalty unless everyone on the jury finds that the aggravating factors that the jurors have unanimously found to exist are sufficiently serious to 

justify a death sentence. Even if the jury unanimously makes such 

findings, it is not required under law to find in favor of the death 

penalty; that is a matter for the jury to decide. 

[For § 3591 offenses, add:] If a jury does not unanimously find in 

favor of the death penalty, it may consider whether a sentence of 

 

 8. The term “recommend,” used in the statutes, should be avoided as potentially misleading. See Caldwell v. Mississippi, 472 U.S. 320 (1985). The court is without authority to reject the recommendation. See 18 U.S.C. § 3594; 21 U.S.C. § 848(l).
Section 3.01: Death penalty procedures 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 117

life imprisonment without the possibility of release should be imposed, a decision that must also be unanimous.9

 If a jury unanimously finds in favor of the death penalty, this 

court is required to sentence the defendant to death. [For § 3591 

offenses, add:] If a jury unanimously finds in favor of a sentence of 

life imprisonment without the possibility of release, the court is 

required to impose that sentence. 

7. During voir dire, question the venire members as to their views on 

the death penalty.10 It is recommended that this be done by questioning individual venire members at side-bar. A juror may not be excused for cause simply because the juror voices “general objections 

to the death penalty or express[es] conscientious or religious scruples 

against its infliction.”11 “The standard is whether the juror’s views 

would ‘prevent or substantially impair the performance of his duties 

as a juror in accordance with his instructions and his oath.’”12 Excuse 

the juror for cause if the juror answers yes to either of the following 

questions: 

(a) Would you never find, under any circumstances, in favor of the 

death penalty under the law as I will explain it?13 

(b) If the defendant is found guilty of conduct that is a capital offense, beyond a reasonable doubt, would you always find in 

favor of the death penalty?14 

 Note that the harmless error analysis does not apply to Witherspoon 

violations.15

 

 9. The option of a jury-imposed sentence of life without release is not available under 

§ 848. Section 3593(e) allows the jury to “recommend” such a sentence, and under § 3594 

“the court shall sentence defendant accordingly.” See also infra note 21. 

10. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for a discussion of jury selection, including “death-qualifying” the jury. See also United States v. Purkey, 

428 F.3d 738, 750–52 (8th Cir. 2005) (discussing use of juror questionnaire and affirming exclusion of three potential jurors); United States v. McVeigh, 153 F.3d 1166, 1205–11 (10th Cir. 

1998) (discussing voir dire issues regarding “death-qualifying” and pretrial publicity); 

United States v. Tipton, 90 F.3d 861, 870–81 (4th Cir. 1996) (affirming district court’s method 

of voir dire and the dismissal for cause of some jurors who opposed the death penalty); 

United States v. Flores, 63 F.3d 1342, 1353–56 (5th Cir. 1995) (same). 

11. Witherspoon v. Illinois, 391 U.S. 510, 521–22 (1968). 

12. Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 

(1980). See also Lockhart v. McCree, 476 U.S. 162 (1986) (allowing a juror who could not perform in the penalty phase to be excluded from the guilt/innocence phase). 

13. See Witherspoon, 391 U.S. 510. 

14. See Morgan v. Illinois, 504 U.S. 719 (1992). 

15. Gray v. Mississippi, 481 U.S. 648 (1987). 
Section 3.01: Death penalty procedures 

118 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

8. When the jury retires to consider its verdict, do not discharge the alternate jurors.16 Instruct the alternates to avoid discussing the case 

with anyone. If an alternate juror replaces a juror after deliberations 

have begun, instruct the jury to begin its deliberations anew. Fed. R. 

Crim. P. 24(c)(3). 

B. After verdict or plea 

1. No presentence report should be prepared. 18 U.S.C. § 3593(c); 21 

U.S.C. § 848(j). 

2. Unless the defendant moves for a hearing without a jury and the 

government consents, the hearing must be before a jury. 

(a) If the defendant was convicted after a jury trial, the hearing 

should be before the jury that determined guilt, unless such jury 

has been discharged for good cause. 

(b) If the defendant was convicted upon a plea or after a bench trial, 

a jury and alternates should be impaneled in accordance with 

Fed. R. Crim. P. 24(c). 

18 U.S.C. § 3593(b); 21 U.S.C. § 848(i)(1). 

3. Instruct the jury about the purpose of the hearing.17

(a) Inform the jurors that they will be required to make specific findings about possible aggravating circumstances, that any or all of 

them may make a finding regarding any mitigating circumstances,18 and that if certain findings are made, they will be required to decide whether the defendant should be sentenced to 

death (or, if the offense is under § 3591, to life imprisonment 

without the possibility of release). 

 

16. Fed. R. Crim. P. 24(c)(3) gives district courts the discretion to retain alternate jurors 

when the jury retires. Note that §§ 3593(b) and 848(i) do not allow a jury of fewer than 

twelve members unless the parties stipulate to a lesser hearing before the conclusion of the 

sentencing hearing. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), 

for a discussion of retaining the alternate jurors. 

17. Samples of jury instructions that have been used in death penalty cases are available from the Federal Judicial Center’s Information Services Office. 

18. Under §§ 3593(d) and 848(k), specific findings about mitigating factors are not required. However, both sections state that such findings “may be made by one or more members of the jury,” and the Eleventh Circuit held that “[s]ection 848(k) requires that the jury be 

instructed that it has the option to return written findings of mitigating factors.” United 

States v. Chandler, 996 F.2d 1073, 1087 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999). 

The court also noted that under § 848(q)(3)(B), the reviewing court is to consider whether 

such findings, or any failure to find a mitigating factor, are supported by the record, but held 

that this section requires only “that if the jury exercises its option, we must review those 

findings.” 996 F.2d at 1087. There is no similar provision regarding appellate review of 

mitigating circumstances in § 3595(c)(2). Nevertheless, it is recommended that the trial 

judge require such findings. 
Section 3.01: Death penalty procedures 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 119

(b) Instruct the jurors that, in considering whether a sentence of 

death is justified, they shall not consider the race, color, religious 

beliefs, national origin, or sex of the defendant or of any victim; 

that the jury is not to recommend a sentence of death unless it 

has concluded that it would recommend a sentence of death for 

the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may 

be; and that each of the jurors will be required to certify that he or 

she has not been influenced by such factors. 18 U.S.C. § 3593(f); 

21 U.S.C. § 848(o)(1). 

4. Proceed with the hearing in the manner set forth in 18 U.S.C. 

§ 3593(c) or 21 U.S.C. § 848(j). Note that 

(a) the government may seek to prove only those aggravating factors 

of which it gave notice; 

(b) the rules of evidence do not apply, but information may be excluded if its probative value is outweighed (§ 3593(c)) or “substantially outweighed” (§ 848(j)) by the danger of unfair prejudice, confusion of the issues, or misleading the jury;19

(c) the trial transcript and exhibits may be used, particularly if a new 

jury has been impaneled for the sentencing stage; 

(d) the order of argument is prescribed by the statute; and 

(e) the representative(s) of any victim must be provided an opportunity “to be reasonably heard” during the sentencing hearing. 

18 U.S.C. § 3771(a)(4) and (e). 

5. Instruct the jury and provide it with a form for findings relative to 

sentencing. (See the suggested form for sentencing findings at the 

end of this section.20) Be sure to cover the following points: 

(a) The jury should first consider the aggravating factors that the 

government has sought to establish. 

(b) The aggravating factors must be proved beyond a reasonable 

doubt, and the jury can find that an aggravating factor exists only 

by unanimous vote. If the jury is not unanimous in finding that 

an aggravating factor has been proved, it must treat it as not 

proved.21 

 19. See, e.g., United States v. McVeigh, 153 F.3d 1166, 1211–16 (10th Cir. 1998) (discussing 

standards for admission of mitigating evidence). 

20. Sample jury instructions and forms are available from the Federal Judicial Center’s 

website (www.fjc.gov). Follow the links for the “Resource Guide for Managing Capital Cases, 

Volume I: Federal Death Penalty Trials.” 

21. This outline and the accompanying form are based on the understanding that, if the 

jurors disagree about the findings required for a death sentence, a sentence other than 

death will be imposed. 18 U.S.C. § 3594; 21 U.S.C. § 848(l). For § 3591 offenses, the jury is 

specifically instructed that it may choose a sentence of life imprisonment without release or 
Section 3.01: Death penalty procedures 

120 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(c) For the jurors even to consider the death penalty, they must 

(i) for § 3591 offenses: answer yes to the required § 3592(b), (c), 

or (d) question (question 1 on the suggested form); 

(ii) for § 848(e) offenses (committed before March 9, 2006): answer 

yes to the § 848(n)(1) question (question 1 on the suggested 

form) and to at least one of the § 848(n)(2)–(12) questions 

(question 2 on the suggested form). 

(d) If the jury’s findings about aggravating factors permit consideration of a death sentence, the jury should then consider the defendant’s evidence of mitigating factors. 

(e) A mitigating factor should be taken as true if it has been established by a preponderance of the evidence. Distinguish between 

the reasonable doubt and preponderance tests. 

(f) The jurors should discuss the evidence about mitigating factors 

but are not required to reach a unanimous decision. A finding of a 

mitigating factor may be made by one or more jurors, and any 

member of the jury who finds the existence of a mitigating factor 

by a preponderance of the evidence may consider such a factor 

established, regardless of whether any other juror agrees. 

(g) In considering whether the death penalty should be imposed, 

each juror should consider only those aggravating factors that 

have been found to exist beyond a reasonable doubt by unanimous vote, but each juror should consider any mitigating factors 

that have been proved by a preponderance of the evidence to his 

or her own satisfaction. 

 

a lesser sentence. However, there is no similar choice for the jury in § 848, and no requirement that the jurors be told the consequences of failure to unanimously agree on a sentence 

of death. See Chandler, 996 F.2d at 1089 (“district court is not required to instruct the jury on 

the consequences of the jury’s inability to reach a unanimous verdict”). 

 The Supreme Court held that when a defendant’s future dangerousness is an issue and 

the only alternative sentence to death is life with no possibility of parole, due process entitles the defendant to tell the jury that the defendant will never be released from prison. 

Simmons v. South Carolina, 114 S. Ct. 2187, 2196–201 (1994). The Court later held that such 

an instruction should have been given where the prosecution introduced evidence of the defendant’s future dangerousness, even though the prosecutor did not specifically argue future 

dangerousness as a reason to impose the death penalty. Kelly v. South Carolina, 534 U.S. 

246, 252–57 (2002). Cf. United States v. Stitt, 250 F.3d 878, 888–92 (4th Cir. 2001) (distinguishing Simmons because, although government used defendant’s future dangerousness 

as an aggravating factor, there was still possibility of departure under the guidelines to less 

than a life sentence); United States v. Flores, 63 F.3d 1342, 1368–69 (5th Cir. 1995) (affirmed: 

same, and government focused on danger defendant “would pose while still in prison,” not 

after release). See also O’Dell v. Netherland, 521 U.S. 151, 159–67 (1997) (declining to apply 

Simmons retroactively). 
Section 3.01: Death penalty procedures 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 121

(h) The jury should then: 

(i) for § 3591 offenses: 

(a) consider whether the aggravating factor(s) sufficiently 

outweigh the mitigating factor(s) to justify a sentence of 

death, or, in the absence of a mitigating factor, whether 

the aggravating factor(s) alone are sufficient to justify a 

sentence of death; 

(b) determine whether the defendant should be sentenced 

to death, to life imprisonment without possibility of release, or some other sentence, a decision that must be 

unanimous.22

(ii) for § 848(e) offenses (committed before March 9, 2006):

 determine—based on consideration of whether the aggravating factors sufficiently outweigh any mitigating 

factors, or in the absence of mitigating factors, whether 

the aggravating factors alone are sufficient to justify a 

sentence of death—whether the death penalty should 

be imposed. The jury may find in favor of the death penalty only by unanimous vote. 

(i) Regardless of its findings about aggravating and mitigating factors, the jury is never required to find in favor of a death sentence.23

(j) The jury shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or any victim in considering 

whether a sentence of death is justified, and must not impose a 

death sentence unless it would do so no matter what the race, 

color, religious beliefs, national origin, or sex of the defendant or 

of any victim. The jurors must sign a certificate to this effect when 

a death sentence is returned. 18 U.S.C. § 3593(f); 21 U.S.C. 

§ 848(o)(1). 

6. Consider retaining the alternates after the jury retires. Fed. R. Crim. 

P. 24(c)(3). (Note that, although Fed. R. Crim. P. 23(b) permits a court 

to accept a verdict from eleven jurors if a juror is excused after the 

jury retires, §§ 3593(b) and 848(i)(2) allow sentencing findings to be 

accepted from fewer than twelve jurors only if the parties agree to a 

lesser number before the jury retires.) 

 

22. Although § 3593(e) states that the jury may unanimously recommend “some other 

lesser sentence,” § 3594 implies that the court may still impose a sentence of life without release. See also Jones v. United States, 119 S. Ct. 2090, 2098–100 (1999) (indicating that “otherwise” clause of § 3594 leaves sentencing determination to court if jury cannot agree 

unanimously on a sentence). 

23. This is explicitly stated in § 848(k) and is implicit in § 3593(e), given the jury’s 

authorization to choose a lesser sanction. 
Section 3.01: Death penalty procedures 

122 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

7. If the jury finds in favor of a death sentence, the court must impose 

such a sentence. Otherwise: 

(a) For § 3591 offenses: If the jury unanimously finds in favor of life 

imprisonment without the possibility of release, the court must 

impose that sentence; otherwise, the court shall impose any other 

sentence authorized by law. See 18 U.S.C. § 3594.

(b) For § 848(e) offenses (committed before March 9, 2006): The court 

may impose any other sentence authorized by law. 21 U.S.C. 

§ 848(l).
Section 3.01: Death penalty procedures 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 123

Suggested form for sentencing findings 

1. Do you find unanimously that the government has proved, beyond a

reasonable doubt, that the defendant [insert government’s claim under

§ 3592(b), (c), or (d), or § 848(n)(1)(A), (B), (C), or (D)]?24

 Yes ❏ No ❏ 

IF THE ANSWER TO QUESTION 1 IS “NO,” STOP HERE. ALL JURORS 

SHOULD SIGN AT THE END OF THE FORM. 

2. [For § 848(e) offenses (committed before March 9, 2006) only:] Do you find

unanimously that the government has proved, beyond a reasonable

doubt, that the defendant [insert government’s claim under

§ 848(n)(2)–(12)]?

Yes ❏ No ❏

[Repeat the above for as many separate factors under (n)(2)–(12) as the 

government alleges.] 

IF THE ANSWER TO QUESTION 2 IS [OR TO QUESTIONS 2 THROUGH 

__ ARE ALL] “NO,” STOP HERE. ALL JURORS SHOULD SIGN AT THE 

END OF THE FORM. 

3. Do you find unanimously that the government has proved, beyond a

reasonable doubt, that the defendant [insert government’s claim of

other aggravating factor]?

 Yes ❏ No ❏

[Repeat the above for as many additional aggravating factors as the government alleges.] 

4. Do any jurors find that the defendant has proved, by a preponderance

of the evidence, that [insert the defendant’s claim of mitigating factor]? 

Yes ❏ No ❏

24. One of the aggravating factors listed in 21 U.S.C. § 848(n)(1) must be found if the

death penalty is to be imposed. It is hard to imagine a conviction under § 848(e) that does 

not subsume a factor under (n)(1). Nevertheless, the statute requires that the existence of an 

(n)(1) factor be considered at the penalty stage. It appears that subsection (n)(1) was drafted 

in contemplation of application to a wider range of criminal conduct than § 848(e) encompasses. For the Supreme Court’s treatment of a similar statute, see Lowenfield v. Phelps, 484 

U.S. 231 (1988). See also United States v. McCullah, 76 F.3d 1087, 1109–10 (10th Cir. 1996) 

(recognizing this aspect of § 848(e) but finding it meets requirements of Lowenfield); United 

States v. Flores, 63 F.3d 1342, 1369–72 (5th Cir. 1995) (same); United States v. Chandler, 996 

F.2d 1073, 1092–93 (11th Cir. 1993) (same), vacated in part, 193 F.3d 1297 (1999). Note that 

the Fourth and Tenth Circuits have held that it is error to find duplicative (n)(1) factors. See 

supra note 6.
Section 3.01: Death penalty procedures 

124 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 [Repeat the above for as many separate mitigating factors as the defendant alleges.] 

5. Do you find unanimously that the aggravating factor(s) to which you 

have provided a unanimous “yes” answer above sufficiently outweigh(s) 

the mitigating factor(s) to justify a sentence of death, or in the absence of 

a mitigating factor, that the aggravating factor(s) alone is (are) sufficient 

to justify a sentence of death, and that the defendant should be sentenced to death? 

 Yes ❏ No ❏

 IF THE ANSWER TO QUESTION 5 IS “NO” AND A § 3591 OFFENSE IS 

INVOLVED, ASK: 

 Do you find unanimously that the defendant should be sentenced to life 

imprisonment without possibility of release? 

 Yes ❏ No ❏

Each of the undersigned jurors hereby certifies that: 

1. in reaching my decisions about the sentence in this case, I did not 

consider the race, color, religious beliefs, national origin, or sex of either the defendant, [defendant’s name], or the victim, [victim’s 

name]; and 

2. I would have made the same decision about the sentence for this 

crime no matter what the race, color, religious beliefs, national origin, 

and sex of the defendant, [defendant’s name], and the victim, [victim’s name]. 

 

(Foreperson) 

 

 

 

 

 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 125

4.01 Sentencing procedure 

Fed. R. Crim. P. 32; 18 U.S.C. § 3553(a) 

I. Introduction 

Before the promulgation of the Sentencing Guidelines, federal courts sentenced defendants in an indeterminate sentencing regime. Judges had discretion to impose any fair sentence within the bounds of the statutory 

minimum and maximum. Because of parole, the sentence a judge imposed 

was often quite different from the time a defendant served. This discretion 

and indeterminacy led to congressional concern about unwarranted federal 

sentencing disparity and to the enactment of The Sentencing Reform Act of 

1984 (SRA). The SRA was passed with bipartisan and near-unanimous Senate support under the leadership of Senators Kennedy, Thurmond, Hatch, 

and Biden. Its goals were greater fairness and transparency in federal sentencing. The SRA brought about “truth in sentencing” by eliminating parole, 

created the Sentencing Commission, and charged the Commission with 

crafting sentencing guidelines. The Commission, in turn, promulgated 

guidelines that provide a sentencing range appropriate for the “heartland” 

of typical cases, based on the defendant’s offense level and criminal history. 

Judges were required to select sentences from within the guidelines range 

except in unusual circumstances. 

 In 2005, the Supreme Court issued United States v. Booker, 543 U.S. 220 

(2005). Booker, reinforced by subsequent Supreme Court decisions,1 

changed the sentencing landscape by making the Sentencing Guidelines 

advisory rather than mandatory. This advisory status notwithstanding, a 

judge’s sentencing calculation must begin with an accurate determination 

of the applicable sentencing range under the guidelines. The judge must 

then consider whether any departures from the guidelines would be consistent with guideline policy statements and commentary.2 See 18 U.S.C. 

 

 1. See Dorsey v. United States, 132 S. Ct. 2321 (2012); Setser v. United States, 132 S. Ct. 

1463 (2012); Southern Union Co. v. United States, 132 S. Ct. 2344 (2012); Tapia v. United 

States, 131 S. Ct. 2382 (2011); Pepper v. United States, 131 S. Ct. 1229 (2011); Dillon v. United 

States, 130 S. Ct. 2683 (2010); Nelson v. United States, 555 U.S. 350 (2009); Spears v. United 

States, 555 U.S. 261 (2009); Irizarry v. United States, 553 U.S. 708 (2008); Gall v. United 

States, 552 U.S. 38 (2007); Kimbrough v. United States, 552 U.S. 85 (2007); Rita v. United 

States, 551 U.S. 338 (2007). 

 2. See, e.g., United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006) (“Because Guideline ‘departures’ are a part of the appropriate Guideline range calculation, we believe that 

Guideline departures are still a relevant consideration for determining the appropriate 

Guideline sentence.”); United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005) (“the application of the guidelines is not complete until the departures, if any, that are warranted are 

appropriately considered”). See also United States v. Lofink, 564 F.3d 232, 240–42 (3d Cir. 

2009) (failure to rule on defendant’s departure motion constitutes procedural error—merits 

of departure motions must be considered separately from resolution of variance requests). 

But see United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (“framing of the issue as 
Section 4.01: Sentencing procedure 

126 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

§ 3553(a)(4),(5); see also, e.g., USSG § 5K1.1. Finally, the judge should consider the other factors listed in 18 U.S.C. § 3553(a) in order to arrive at the 

final sentence.3

 Note that any reference in this section to a “departure” means a departure from the calculated guideline range that is consistent with applicable 

policy statements and guideline commentary. In contrast, a “variance” refers to a sentence that is outside of the advisory guideline range based on 

the application of other § 3553(a) factors, as authorized by Booker.

4

 A final 

sentence may include both a departure and a variance if warranted by the 

circumstances. 

II. Preliminary matters

A. Presentence report 

Federal Rule of Criminal Procedure 32(e)(2) requires that the presentence 

report be disclosed to the defendant, defense counsel, and the attorney for 

the government not less than thirty-five days before the sentencing hearing, unless this period is waived by the defendant.5

 Each party has fourteen 

days to provide to the opposing party and the probation officer a written 

copy of any objections to the presentence report. Fed. R. Crim. P. 32(f)(1)–

(2). The probation officer must then submit the presentence report to the 

court and the parties at least seven days before sentencing, along with “an 

addendum containing any unresolved objections, the grounds for those ob-

 

one about ‘departures’ has been rendered obsolete by our recent decisions applying 

Booker”); United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (in light of Booker, 

court would “treat such so-called departures as an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range” and subject it to a “unitary 

review for reasonableness, no matter how the district court styles its sentencing decision”). 

3. The Guidelines provide that courts must follow the three-step sentencing protocol set 

out in Booker. See USSG § 1B1.1 (“[1] The court shall determine the kinds of sentence and 

the guideline range as set forth in the guidelines . . . . [2] The court shall then consider . . . 

Specific Offender Characteristics and Departures and any other policy statements or commentary in the guidelines that might warrant consideration . . . . [3] The court shall then 

consider the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.” For a general discussion of the relationship between the manner in which a sentencing hearing is conducted 

and the interests of the parties involved, see D. Brock Hornby, Speaking in Sentences, 14 

Green Bag 2D 147 (2011). 

4. A court may also base a variance on a disagreement with the policy underpinning a

guideline. See Spears, 555 U.S. at 264; Kimbrough, 552 U.S. at 109–11. 

5. Note that the presentence report shall not include any diagnostic opinions that if disclosed may disrupt a program of rehabilitation, sources of information obtained upon a 

promise of confidentiality, or any other information that may result in harm to the defendant or others if disclosed. Fed. R. Crim. P. 32(d)(3). The probation officer’s final recommendation as to sentence, previously withheld, may now be disclosed pursuant to local rule or at 

the court’s discretion. Fed. R. Crim. P. 32(e)(3). 
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 127

jections, and the probation officer’s comments on them.” Fed. R. Crim. P. 

32(g). 

B. Notice of departure 

If you are contemplating a departure from the advisory guideline range on a 

ground not identified as such either in the presentence report or in a prehearing submission, you must provide “reasonable notice” to the parties 

and identify the departure grounds. Fed. R. Crim. P. 32(h); Burns v. United 

States, 501 U.S. 129 (1991). Although it is not required, it may be advisable to 

also provide notice of previously unidentified grounds that may support a 

non-guidelines sentence.6

C. Concurrent or consecutive sentences 

Determine whether you will need to decide between concurrent, consecutive, or partially consecutive sentences, such as when the defendant was 

convicted on multiple counts, is subject to an undischarged term of imprisonment, or faces sentencing in a state court. See USSG §§ 5G1.2 and 5G1.3 

(delineating different circumstances where concurrent or consecutive sentences may be either required or optional); 18 U.S.C. § 3584(a) (“Imposition 

of concurrent or consecutive terms”). See also Setser v. United States, 132 S. 

Ct. 1463, 1468–70 (2012) (district court has discretion to order federal sentence to run consecutively to anticipated state sentence). 

D. Crime victims’ rights 

If there are any victims of the offense, consider asking the government if the 

victims have been notified of their right to attend the hearing and if any 

wish to speak. 18 U.S.C. § 3771(a)(2)–(4). See also Fed. R. Crim. P. 32(i)(4)(B)–

(C) (“Before imposing sentence, the court must address any victim of the 

crime who is present at sentencing and must permit the victim to be reasonably heard,” and the victim may be heard in camera.). 

 

 6. The Supreme Court held that Rule 32(h)’s notice requirement does not apply to variances. Irizarry v. United States, 553 U.S. 708, 714 (2008). The Court added, however, that 

“[s]ound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an 

adequate opportunity to confront and debate the relevant issues. We recognize that there 

will be some cases in which the factual basis for a particular sentence will come as a surprise 

to a defendant or the Government. The more appropriate response to such a problem is not 

to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district 

judge to consider granting a continuance when a party has a legitimate basis for claiming 

that the surprise was prejudicial.” The Court further noted that “at sentencing, the parties 

must be allowed to comment on ‘matters relating to an appropriate sentence,’ Rule 

32(i)(1)(C), and the defendant must be given an opportunity to speak and present mitigation 

testimony, Rule 32(i)(4)(A)(ii).” Id. at 715–16 & n.2. 
Section 4.01: Sentencing procedure 

128 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

E. If guilty plea was before a magistrate judge 

At the beginning of the sentencing hearing, if the defendant had previously 

consented to plead guilty before a magistrate judge, state on the record that, 

based on the information provided by the defendant at the plea hearing 

and contained in the presentence report, you accept the defendant’s guilty 

plea. See supra section 1.13: Referrals to magistrate judges (criminal matters), at note 2. 

III. The sentencing hearing 

The following is a suggested outline for the sentencing hearing that is designed to ensure that judges cover the information required by rule or case 

law. The sentencing hearing does not have to proceed in any particular order, and this outline is only a guide that need not be followed precisely. 

A. Opening 

1. Ask: 

(a) Will counsel for the government introduce himself/herself? 

(b) Will counsel for the defendant introduce himself/herself? 

(c) Will the probation officer introduce himself/herself? 

(d) [If applicable] Will the interpreter introduce himself/herself? 

 The courtroom deputy shall swear in the interpreter. 

2. Ask both counsel: 

(a) I have received the following documents submitted by counsel 

in advance of the hearing: (list the documents: e.g., sentencing 

memoranda, letters, expert reports). 

(b) Do you have any other documents or letters for the court? 

3. Ask the prosecutor: 

(a) Do you have any witnesses or victims present in the courtroom? 

(b) Are you expecting an evidentiary hearing? 

(c) [If applicable] Will the victim(s) be making a statement? 

4. Ask the defense counsel: 

(a) Have you and your client read and discussed the presentence 

report (PSR)? 

(b) Have you discussed the objections? 

(c) Are you expecting an evidentiary hearing? 

(d) Do you have any witnesses present in the courtroom? 
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 129

B. Calculation of the advisory guideline range 

1. Ask both counsel: 

(a) I have read the objections to the presentence report. Do counsel want oral argument on the objections? 

(b) If there are fact disputes, do counsel want to make a proffer 

or is an evidentiary hearing necessary?7

2. After hearing, make the following findings:8

(a) I adopt the PSR without objections. 

[or] 

(b) I resolve the objections as follows:9

(i) With respect to [describe issue], the court finds 

_____________. 

(ii) The remaining disputed issues will not affect sentencing, or 

will not be taken into account at sentencing, so no finding 

is necessary. 

3. [If the government had filed notice under 21 U.S.C. § 851(a)(1)) of increased punishment based on prior convictions, ask the defendant:] 

 Do you affirm or deny that you were previously convicted as alleged in the information by the government? If you do not challenge the existence of a previous conviction before I sentence you, 

you cannot challenge the existence of those previous convictions 

on appeal or in a post-conviction proceeding. [21 U.S.C. 

§ 851(b).]

4. If, under Rule 11(c)(3)(A), the court had deferred its decision whether 

to accept a plea agreement that requires dismissal of charges (Rule 

11(c)(1)(A)) or that would bind it to a specific sentence or specific sentencing terms (Rule 11(c)(1)(C), state:] 

 

 7. The court has discretion to permit the introduction of evidence. Fed. R. Crim. P.

32(i)(2). Evidentiary hearings should be reserved for occasions in which there is a disputed 

issue of fact in the proffer. There is some disagreement among the circuits as to the burden 

of production with respect to evidence germane to disputed portions of the PSR. 

 8. If information that will be relied on in determining the sentence has been withheld 

from the presentence report (PSR) pursuant to Fed. R. Crim. P. 32(d)(3), and the summary has 

not yet been provided, orally summarize the withheld information (in camera if necessary). 

See Fed. R. Crim. P. 32(i)(1)(B). 

 9. See Fed. R. Crim. P. 32(i)(3)(B). Even if disputed issues will not affect sentencing, it 

may be important to resolve them and attach the court’s findings to the PSR because the Bureau of Prisons bases classification decisions on the PSR. 
Section 4.01: Sentencing procedure 

130 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(a) I accept the provisions of the plea agreement (and upon the 

motion of the government the following charges are dismissed 

____________).10

[or] 

(b) I reject the provisions of the plea agreement, and the defendant may withdraw his/her plea. If you do not withdraw your 

plea, I may decide the case less favorably than the plea agreement would have required.11

5. After making the preceding findings and calculations, state: 

(a) After resolving the objections (if any), I calculate the following 

advisory guideline range: the defendant’s offense level is 

_____, and the defendant’s criminal history category is _____. 

This produces a guidelines range of _____ to _____ months 

imprisonment (or probation); a supervised release range following imprisonment of ____ to ____ years; and a fine range 

of _______ to _______. The special assessment is ______. 

(b) Are there any objections for the record? 

C. Departure 

1. The court will now consider whether to grant departures from the 

guidelines range. 

(a) [If a motion pursuant to USSG § 5K1.1 has been filed, you may 

wish to call the parties to sidebar to determine whether to close 

the courtroom and seal the transcripts, or to consider the motion 

in chambers. See USSG § 5K1.1, comment. (backg’d).] 

 The government has filed a motion for a downward departure for substantial assistance to authorities pursuant 

to USSG § 5K1.1 and/or 18 U.S.C. § 3553(e). Will the 

government please set forth the facts supporting its motion? 

 Does the defendant have any comment on the government’s statement? 

(b) [If applicable] The government has filed a motion for a downward departure for participation in the early disposition program 

pursuant to section 5K3.1 of the guidelines. What is the government’s recommendation? 

 10. Fed. R. Crim. P. 11(c)(4).

11. Fed. R. Crim. P. 11(c)(5)(A)–(C) (the court must “advise the defendant personally” of 

the right to withdraw the plea and that the sentence may be less favorable than the plea 

agreement outlined). 
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 131

 What is the defendant’s position regarding the government’s recommendation? 

(c) [If applicable] The government has moved for an upward departure based on [list all grounds]. Is there any opposition? 

(d) [If applicable] The defendant has moved for a downward departure based on [list all grounds]. Is there any opposition? 

(e) [If applicable] Although it was not raised by either party, I am 

considering an upward/downward departure based on [list all 

grounds]. Is there any opposition? 

2. For each departure motion, state as applicable: 

(a) I intend to depart downward in accordance with the government’s/defendant’s motion(s) [and/or the court’s own motion]. I 

believe this departure is consistent with [detail the guidelines 

provision(s) with which departure(s) is/are consistent].

(b) I intend to depart upward in accordance with the government’s 

motion [and/or the court’s own motion]. I believe this departure 

is consistent with [detail the guidelines provision(s) with which 

departure(s) is/are consistent].

(c) I do not intend to depart. Although departure is authorized in this 

case, I believe it is not warranted under the circumstances for the 

following reasons __________________. 

(d) I do not intend to depart because departure is not authorized under these facts. [If applicable, add:] Even if departure were 

authorized under these facts, I would exercise my discretion not to 

depart. 

D. Section 3553(a) factors/variances 

1. State: After calculating the guidelines and departures, and hearing 

argument, I must now consider the relevant factors set out by 

Congress at 18 U.S.C. § 3553(a) and ensure that I impose a sentence “sufficient, but not greater than necessary, to comply with 

the purposes” of sentencing. These purposes include the need for 

the sentence to reflect the seriousness of the crime, to promote respect for the law, and to provide just punishment for the offense. 

The sentence should also deter criminal conduct, protect the public from future crime by the defendant, and promote rehabilitation. In addition to the guidelines and policy statements, I must 

consider 

(a) “the nature and circumstances of the offense”; 

(b) “the history and characteristics of the defendant”;
Section 4.01: Sentencing procedure 

132 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(c) the need to avoid unwarranted sentence disparities among 

similarly situated defendants; and 

(d) the types of sentences available. 

2. Does the prosecutor wish to argue about the application of the 

factors set forth in section 3553(a), request a variance, or otherwise make a sentencing recommendation? 

3. Does the defense counsel wish to argue about the application of 

the factors set forth in section 3553(a), request a variance, or 

otherwise make a sentencing recommendation? 

4. The court is considering a downward [an upward] variance of 

________ months for the following reasons [state reasons]. Does 

either party wish to comment or object? 

E. Final statements 

(See Fed. R. Crim. P. 32(i)(4). Note that, upon motion and for good cause, any 

statements made under Rule 32(i)(4) may be heard in camera.) 

1. [If a victim is present:] Does the victim wish to make a statement? 

2. The defendant has the right to make a statement “or present any 

information to mitigate the sentence.” Does the defendant wish 

to make a statement? 

3. Does the defense counsel have anything to add on behalf of the 

defendant? 

4. Does the prosecutor wish to make a final statement? 

F. The court’s pronouncement of sentence 

1. Based on these factors and the Sentencing Guidelines, I sentence 

the defendant to _____, which is within the guideline range. 

 [If the guideline range exceeds 24 months, state the reason for 

imposing the sentence at that particular point within the range. 

18 U.S.C. § 3553(c)(1).] 

[or] 

2. Because there are grounds to depart, I sentence the defendant to 

_____. 

[or] 

3. After assessing the particular facts of this case in light of the relevant § 3553(a) factors, including the Sentencing Guidelines, I 

conclude that a sentence outside of the advisory guideline range is 

warranted and sentence the defendant to _____, representing a 

_____ variance from the guidelines range. [Explain the particular 

factors that influenced your decision and the extent of the variance. 18 U.S.C. § 3553(c)(2). If either party requested a non-
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 133

guidelines sentence, explain why you will grant or deny the request and directly address the arguments made by each party.] 

4. [If the sentence includes a term of probation, state the length of 

the term and ask counsel to suggest appropriate conditions. See

U.S.S.G. § 5B1.1–1.3; 18 U.S.C. §§ 3561–3564.] 

5. [If a sentence of imprisonment is imposed:] I must also consider 

whether to impose a term of supervised release. 

 [Ask counsel and probation for appropriate conditions of supervised release. See U.S.S.G. § 5D1.3; 18 U.S.C. § 3583(d).] 

G. Imposition of sentence 

State:

I will now impose the sentence. 

1. [If sentencing to a term of imprisonment:] 

(a) The defendant is hereby committed to the custody of the Bureau of Prisons for a term of _____ months. [Ask counsel if 

there is a requested BOP institution.] 

[or] 

(b) The defendant is hereby committed to the custody of the Bureau of Prisons for a term of _____ months and then to 

community confinement/home detention for a term of 

________ months. 

 [If applicable, specify whether the sentence imposed on any 

count should run concurrently with, consecutive to, or partially consecutive to any other sentence that will be imposed, 

that defendant is already subject to, or that defendant may 

be facing in another court. See supra subsection II.C.] 

(c) [If applicable:] The Court recommends to the Bureau of Prisons that the defendant be placed in an institution with the following programs: [substance abuse treatment, mental health 

counseling, vocational training, etc.] 

2. Upon release from imprisonment, the defendant is to be placed 

on supervised release for a term of _____ years.12 While on super-

 12. Supervised release may be required by specific statute. The guidelines also provide 

for supervised release if a sentence of more than one year’s imprisonment is imposed. See

USSG § 5D1.1(a); but cf. USSG § 5D1.1, comment (n.1) (authorizing departure from 

§ 5D1.1(a) under some circumstances). It may otherwise be imposed at the court’s discretion. 

USSG § 5D1.1(b). 
Section 4.01: Sentencing procedure 

134 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

vised release, the defendant is subject to the following standard 

and special conditions _____ .13

 3. [If sentencing to probation:14] 

 The defendant is placed on probation for a term of _____ years. 

While on probation the defendant is subject to the following 

conditions _____. 

 4. [If restitution, a fine, or forfeiture is called for:] 

(a) The defendant must make restitution as follows _____. This 

restitution is due on the following schedule: _________.15 If the 

defendant fails to pay the full restitution owed, each recipient 

is to receive an approximately proportional allotment of the 

restitution paid. This restitution obligation is joint and several 

with any other obligated defendants.16 

(b) The court orders that the defendant pay the United States a 

fine of _____.17

[or] 

 The fine (and/or interest on the fine) owed by the defendant is 

waived/below the guideline range because of the defendant’s 

inability to pay. 

(c) Forfeiture of the property described in count(s) _____ of the 

indictment/information is hereby ordered.18

 

13. See permitted conditions of supervised release at USSG § 5D1.3. The court may recommend that the defendant receive residential substance abuse treatment pursuant to the 

provisions of 18 U.S.C. § 3621(b). Note that the court may suspend the mandatory drug testing provision if the defendant poses a low risk of future substance abuse. 18 U.S.C. § 3583(d). 

14. Probation is statutorily prohibited for defendants convicted of certain offenses, e.g., 

Class A felonies. See USSG § 5B1.3 for the mandatory, recommended, and discretionary 

conditions of probation. 

15. See 18 U.S.C. § 3664(f) (outlining the manner and schedule of restitution payments). 

If restitution is not ordered, or only partial restitution is ordered, the court must state the 

reasons for that decision. 18 U.S.C. § 3553(c). Note that 18 U.S.C. § 3572 states that any 

schedule of payments for restitution or fines “shall be set by the court,” and some circuits 

have held that this authority may not be delegated. Fines and restitution of more than $2,500 

bear interest if not paid within 15 days after the judgment. 18 U.S.C. § 3612(f)(1). If the court 

finds that the defendant is unable to pay interest, this requirement may be waived or modified. Id. § 3612(f)(3). See USSG § 5E1.1. 

16. Alternatively, the court may provide a different payment schedule for each victim,

18 U.S.C. § 3664(i), and may apportion liability among the defendants, 18 U.S.C. § 3664(h). 

17. 18 U.S.C. § 3572(a); USSG § 5E1.2. See supra note 15 regarding interest on fines. 

Note that the maximum amount of a fine is limited to that which is authorized by the jury’s 

verdict. Southern Union Co. v. United States, 132 S. Ct. 2344, 2350–52 (2012) (rule of Apprendi applies to criminal fines). 

18. Fed. R. Crim. P. 32.2. 
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 135

5. It is ordered that the defendant pay to the United States a special 

assessment in the amount of _____.19

H. Notification of right to appeal20

1. Notify the defendant: 

(a) [If the defendant was convicted after a trial:] 

 You have the right to appeal your conviction(s), and the right 

to appeal a sentence you believe was illegally or incorrectly 

imposed. 

(b) [After conviction by guilty plea, advise the defendant:] 

 You can appeal your conviction if you believe that your guilty 

plea was somehow unlawful or involuntary, or if there is some 

other fundamental defect in the proceedings that was not 

waived by your guilty plea. 

(c) [If the defendant has not waived the right to appeal, advise the 

defendant:] 

 You also have a statutory right to appeal your sentence under 

certain circumstances, particularly if you think the sentence is 

contrary to law. 

[or] 

 [If there is a waiver of the right to appeal, advise the defendant:] 

 Under some circumstances, a defendant also has the right to 

appeal the sentence. However, a defendant may waive that 

right as part of a plea agreement, and you have entered into a 

plea agreement which waives some or all of your rights to appeal the sentence itself. Such waivers are generally enforceable, 

but if you believe the waiver itself is not valid, you can present 

that theory to the appellate court.21

2. Notify the defendant: 

 Any notice of appeal must be filed within fourteen days of the entry 

of judgment or within fourteen days of the filing of a notice of appeal 

by the government. If requested, the clerk will prepare and file a notice 

 

19. USSG § 5E1.3 & comment (n.2). 

20. In misdemeanor and petty offense trials, magistrate judges must notify defendants 

of their right to appeal. Fed. R. Crim. P. 58(c)(4). Note also that an appeal from a judgment of 

conviction or sentence by a magistrate judge is to the district court. Fed. R. Crim. P. 

58(g)(2)(B). 

21. The specific terms of the waiver should have been reviewed with the defendant during the plea colloquy. If they were not, review them here to ensure that the defendant’s 

waiver is knowing and voluntary. Even if there was a thorough discussion at the plea hearing, it may be advisable to quickly summarize the relevant terms of the agreement and confirm that the defendant is being sentenced in accordance with those terms. 
Section 4.01: Sentencing procedure 

136 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

of appeal on your behalf. If you cannot afford to pay the cost of an 

appeal or for appellate counsel, you have the right to apply for leave 

to appeal in forma pauperis, which means you can apply to have the 

court waive the filing fee. On appeal, you may also apply for courtappointed counsel.22

I. Conclusion 

1. Ask the counselors: 

Are there any other matters to resolve in this case? 

2. [If the defendant has been sentenced to a term of imprisonment and 

was at liberty pending sentencing, ask:] 

(a) Does defense counsel request voluntary surrender?23

(b) Does government counsel oppose voluntary surrender?] 

3. State: 

(a) The defendant is remanded to the custody of the marshal; 

[or] 

(b) The defendant is to report for service of sentence in the future. 

Release conditions previously established continue to apply. 

Failure to report for service of sentence is a criminal offense.24

Adjourn. 

IV. Final matters 

A. Entry of judgment 

A judgment of the conviction should promptly be prepared on the form required by the Sentencing Commission and issued by the Judicial Conference of the United States, Form AO 245B, “Judgment in a Criminal Case” (as 

amended September 2011).25 Include a copy of the final order of forfeiture, if 

any. 

 22. See Fed. R. App. P. 4(b)(1)(A) and 24(a); Fed. R. Crim. P. 32(j)(2); 18 U.S.C. § 3006A. 

23. Whether the defendant was permitted to voluntarily surrender affects the defendant’s Bureau of Prisons security designation. See also supra section 2.11: Release or detention pending sentence or appeal. 

24. 18 U.S.C. § 3146(a)(2) (“Whoever . . . knowingly fails to surrender for service of sentence pursuant to a court order shall be punished as provided” in the statute.). 

25. Pursuant to the authority granted in 28 U.S.C. § 994(w)(1), the Sentencing Commission approved Form AO 245B (or 245C for an amended judgment; 245D for revocations; 

245E for organizational defendants) as the format courts must use to submit sentencing information. As amended March 9, 2006, § 994(w)(1) states: 

The Chief Judge of each district court shall ensure that, within 30 days following 

entry of judgment in every criminal case, the sentencing court submits to the 

Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the of-
Section 4.01: Sentencing procedure 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 137

B. Statement of reasons 

“[A] transcription or other appropriate public record of the court’s statement 

of reasons, together with the order of judgment and commitment,” must be 

provided to the probation office, to the Sentencing Commission, and, if the 

sentence includes a prison term, to the Bureau of Prisons. 18 U.S.C. 

§ 3553(c). Under 28 U.S.C. § 994(w)(1), as amended March 9, 2006, courts 

must send to the Sentencing Commission a report containing several documents, including AO Form 245B (Judgment in a Criminal Case), which includes the statement of reasons and satisfies the requirements of § 3553(c). 

If there was a departure or other non-guidelines sentence, include in the 

written order of judgment and commitment the specific reasons for sentencing outside of the advisory guideline range.26

C. Administrative and research documentation 

Order that the U.S. Sentencing Commission be sent copies of the charging 

documents, plea agreement (if any), written proffer or stipulation of facts or 

law, presentence report, and judgment of conviction (with statement of reasons), and any other information required under 28 U.S.C. § 994(w)(1). 

Other FJC sources 

James B. Eaglin, Sentencing Federal Offenders for Crimes Committed Before 

November 1, 1987 (1991) 

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues 

(2002) 

 fender, and information regarding factors made relevant by the guidelines. The 

report shall also include— 

(A) the judgment and commitment order; 

(B) the written statement of reasons for the sentence imposed (which 

shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved 

by the United States Sentencing Commission); 

(C) any plea agreement; 

(D) the indictment or other charging document; 

(E) the presentence report; and 

(F) any other information as the Commission finds appropriate. 

The information referred to in subparagraphs (A) through (F) shall be submitted by 

the sentencing court in a format approved and required by the Commission. 

26. 18 U.S.C. § 3553(c)(2). As you did with the statement of reasons, be sure to distinguish 

in the written order between departures and non-guidelines sentences (or “variances”) to 

facilitate appellate review and data collection. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 139

4.02 Revocation of probation or supervised 

release 

Fed. R. Crim. P. 32.1; 18 U.S.C. §§ 3565 and 3583 

I. Introduction 

Whenever a probationer or a person on supervised release fails to abide by 

the conditions of supervision or is arrested for another offense, a revocation 

hearing may be ordered. Revocation is mandatory if a probationer or supervised releasee possesses a firearm (including a destructive device) or a controlled substance, refuses to comply with required drug testing, or fails three 

drug tests in a year.1

 See 18 U.S.C. §§ 3565(b), 3583(g). Revocation is also 

called for under the Sentencing Guidelines for conduct that constitutes certain serious offenses. See U.S.S.G. §§ 7B1.1 and 7B1.3, p.s. 

 Because the proceeding may result in incarceration, particular attention 

must be given to ensuring that the probationer or releasee receives substantive and procedural due process. The revocation procedure may be initiated 

by the court or at the request of the probation office or the office of the U.S. 

attorney. An Order to Show Cause why probation or supervised release 

should not be revoked is effective for this purpose. 

 Federal Rule of Criminal Procedure 32.1(a) requires an initial appearance before a magistrate judge, whether the person is held in custody or appears in response to a summons. The Advisory Committee Notes to the 2002 

amendments state that, if the initial appearance would not be unnecessarily 

delayed, it may be combined with the preliminary hearing. Under Rule 

32.1(a)(1), the procedures applied at the initial appearance differ depending on whether the district where the person appears is or is not the district 

where the alleged violation occurred or is one that has jurisdiction to hold 

the revocation hearing. 

 At all stages of the proceedings, the probationer or releasee must be informed of the right to retain counsel or to request that one be appointed. 

Fed. R. Crim. P. 32.1(a)(3)(B), (b)(1)(B)(i), (b)(2)(D), and (c)(1). 

 [Note: It is unclear whether, at a revocation hearing, the rights accorded 

by the Crime Victims’ Rights Act, 18 U.S.C. § 3771, should be accorded to a 

victim of the conduct that caused the violation of probation or release. If the 

conduct constituted a federal offense, the CVRA may apply whether or not 

there is a separate prosecution.2

 Or, if the revocation hearing is considered a 

 

 1. The mandatory drug testing and revocation for refusal to comply provisions became 

effective September 13, 1994; revocation for failing three drug tests took effect Nov. 2, 2002. 

The ex post facto prohibition may prevent the application of those provisions to defendants 

who committed their offenses before the effective dates of the provisions. 

 2. Under § 3771(e), crime victim is defined as “a person directly and proximately 

harmed as a result of the commission of a Federal offense.” The rights to notification and 

attendance apply to any public court proceeding “involving the crime,” § 3771(a)(1) & (2), 
Section 4.02: Revocation of probation or supervised release 

140 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

“public court proceeding . . . involving the crime or . . . any release . . . of the 

accused,” the CVRA may apply. If it is determined that the CVRA applies, 

ensure that any victims receive the required notice of the hearing and the 

right to attend, as well as the opportunity “to be reasonably heard” at any 

proceeding involving sentencing or release.] 

II. Preliminary hearing 

If the probationer or releasee is in custody, Fed. R. Crim. P. 32.1(b)(1) requires a preliminary probable cause hearing before a district judge or magistrate judge. A probable cause hearing is not required if the probationer or 

releasee is arrested after the issuance of an Order to Show Cause and 

brought before the court for an immediate revocation hearing without being 

held in custody, or if he or she appears voluntarily in response to an Order to 

Show Cause or other notice. Fed. R. Crim. P. 32.1 and Advisory Committee 

Notes (1979). 

III. Suggested procedure at the revocation hearing3

A. Establish for the record that the probationer or releasee, defense counsel, a U.S. attorney, and a probation officer are present. 

B. Advise the probationer or releasee of the alleged violations by reading or 

summarizing the revocation motion. If the alleged violation is of a kind 

that makes revocation mandatory under 18 U.S.C. § 3565(b) or § 3583(g) 

(possession of a firearm, destructive device, or controlled substance, refusal to comply with a drug test, or testing positive for a controlled substance for the third time in the course of one year4

), or under U.S.S.G. 

§ 7B1.3(a)(1), p.s., include advice to that effect. 

C. Ascertain whether the alleged violations are admitted or denied by the 

probationer or releasee. 

 

and the right to be heard at such a proceeding applies if it “involv[es] release, plea, [or] sentencing,” § 3771(a)(4). No provision of the CVRA limits its application to an offense that is 

prosecuted. 

 3. Note that under the Federal Courts Administration Act of 1992, a magistrate judge 

may revoke, modify, or reinstate probation and modify, revoke, or terminate supervised 

release if any magistrate judge imposed the probation or supervised release. 18 U.S.C. 

§ 3401(d), (h) (effective Jan. 1, 1993). 

 Also under the Act, a district judge may designate a magistrate judge to conduct hearings to modify, revoke, or terminate supervised release; to submit proposed findings of fact; 

and to recommend a disposition. 18 U.S.C. § 3401(i) (effective Jan. 1, 1993). 

 4. The statutory provisions for mandatory revocation for refusal to comply with drug 

testing and, for supervised releasees, possession of a firearm, were enacted September 13, 

1994; mandatory revocation for failing three drug tests was added Nov. 2, 2002. Ex post facto 

considerations may prohibit the application of those provisions to defendants whose original offenses were committed before the effective dates of the provisions. 
Section 4.02: Revocation of probation or supervised release 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 141

1. If the violations are admitted: 

(a) Ask the U.S. attorney to present the factual basis showing the violations of the terms of supervision. 

(b) Permit the probationer or releasee, his or her counsel, the U.S. attorney, and the probation officer to be heard concerning whether 

supervision should be revoked. 

2. If the violations are denied: 

(a) Receive evidence presented by the U.S. attorney and the probationer or releasee. 

(b) The revocation hearing is not a formal trial and the Federal Rules 

of Evidence need not apply. Fed. R. Evid. 1101(d)(3).5

(c) Proof beyond a reasonable doubt is not required. To revoke probation, the court must be “reasonably satisfied” that the probationer has not met the conditions of probation. United States v. 

Francischine, 512 F.2d 827 (5th Cir. 1975).6

 Revocation of supervised release requires a preponderance of the evidence. 18 U.S.C. 

§ 3583(e)(3). 

D. Sentencing options 

 [Note: In a hearing to determine whether to modify or revoke probation 

or supervised release, the defendant must be given “an opportunity to 

make a statement and present any information in mitigation.” See Fed. 

R. Crim. P. 32.1(b)(2)(E) and (c)(1).] 

1. If a determination is made not to revoke probation or supervised release: 

(a) The original term of probation or supervised release may be extended up to the maximum term of probation or supervised release that could have been imposed originally. 18 U.S.C. 

§§ 3564(d), 3565(a)(1), 3583(e)(2); U.S.S.G. § 7B1.3(a)(2). 

(b) Conditions of probation or supervised release may be modified, 

enlarged, or reduced. 18 U.S.C. §§ 3563(c), 3565(a)(1), 3583(e)(2); 

U.S.S.G. § 7B1.3(a)(2). 

2. If a determination is made to revoke probation:

(a) Resentence the defendant under the provisions of 18 U.S.C. 

§§ 3551–3559 if the defendant is subject to 18 U.S.C. § 3565(a)(2), 

 

 5. But note that Fed. R. Crim. P. 32.1(e) requires the production of witness statements 

pursuant to the terms of Fed. R. Crim. P. 26.2. 

 6. The Advisory Committee Notes for the creation of Rule 32.1 in 1979 cited Francischine for this proposition. 
Section 4.02: Revocation of probation or supervised release 

142 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

as amended Sept. 13, 1994.7

 The court must also consider the 

provisions of U.S.S.G. § 7B1.3–1.4, p.s. Otherwise, impose any 

other sentence that was available under the sentencing provisions “at the time of the initial sentencing.”8

 18 U.S.C. 

§ 3565(a)(2) (before September 13, 1994, amendment). For defendants initially sentenced under the Sentencing Guidelines, 

consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s. 

(b) If probation is revoked for possession of drugs or firearms, for refusal of required drug testing, or for failing three drug tests in one 

year, sentence the defendant to a term of imprisonment.9

 18 

U.S.C. § 3565(b) (effective Sept. 13, 1994).10

3. If a determination is made to revoke supervised release:

(a) Require the person to serve in prison11 all or part of the term of

supervised release without credit for time previously served on 

post-release supervision, except that the person may not be required to serve more than five years in prison if the person was 

convicted of a Class A felony, more than three years if convicted 

of a Class B felony, more than two years if convicted of a Class C or 

D felony, or more than one year in any other case. 18 U.S.C. 

§ 3583(e)(3). For defendants initially sentenced under the Sentencing Guidelines, consider the provisions of U.S.S.G. § 7B1.3–

1.4, p.s. 

7. Ex post facto considerations may require the use of prior law if the defendant committed the original offense before September 13, 1994. 

8. Because of ex post facto considerations, this earlier version of § 3565(a)(2) may be

required if the defendant committed the original offense before September 13, 1994. The 

Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held that “any other sentence 

that was available . . . at the time of the initial sentencing” means the guideline range applicable to the original offense of conviction. Note that some of the sentences in the “Revocation Table,” U.S.S.G. § 7B1.4, p.s., may exceed the maximum sentences allowed under this 

interpretation. See also Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues § VII.A.1 (Federal Judicial Center 2002). 

9. This amendment to § 3565 removed the requirement to “sentence the defendant to 

not less than one-third of the original sentence.” The Supreme Court resolved a circuit split 

by ruling that “original sentence” meant the original guideline range, not the term of probation. Thus, defendants sentenced before the 1994 amendment could not be sentenced 

after revocation to more than the original guideline maximum. United States v. Granderson, 114 S. Ct. 1259, 1263–69 (1994). Ex post facto considerations may limit the length of 

the sentence that may be imposed in some circuits for defendants who committed their 

original offenses before September 13, 1994. 

10. The provision on revocation for failing three drug tests was not added until Nov. 2, 

2002.

11. Home confinement may also be imposed “as an alternative” to incarceration. See 18

U.S.C. § 3583(e)(4); U.S.S.G. § 5F1.2. 
Section 4.02: Revocation of probation or supervised release 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 143

(b) Require the person to serve a term of imprisonment when revocation is for possession of drugs or firearms, for refusal of required 

drug testing, or for failing three drug tests in one year. 18 U.S.C. 

§§ 3583(g) (as amended Sept. 13, 1994)12 and 3583(e) (before September 13, 1994, amendment).13

(c) If the term of imprisonment imposed is less than the statutorily 

authorized maximum, determine whether to reimpose a term of 

supervised release. The length of the reimposed term may not 

exceed the term of supervised release authorized by statute for 

the original offense, less the term of imprisonment imposed upon 

revocation of release. 18 U.S.C. § 3583(h) (added Sept. 13, 1994); 

18 U.S.C. § 3583(e)(3) (for offenses committed before Sept. 13, 

1994).14

E. Judgment or order 

Enter the appropriate order or judgment. Note that for sentences imposed pursuant to U.S.S.G. § 7B1, p.s., the court should include “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). For 

a sentence outside the range resulting from the application of § 7B1, it 

may be advisable to follow § 3553(c)(2) and state “with specificity in the 

written order of judgment and commitment” the reasons “for the imposition of a sentence different from” the recommended range. 

Other FJC sources 

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues 

(2002) 

12. The provision on revocation for failing three drug tests was not added until Nov. 2, 

2002.

13. Before September 13, 1994, § 3583 required such defendants “to serve in prison not 

less than one-third of the term of supervised release” and only applied to revocation for 

drug possession. 

14. Before § 3583(h) was added, § 3583(e) did not specifically authorize reimposition of

supervised release after revocation. The circuits disagreed about whether reimposition was 

allowed and whether § 3583(h) could be applied retroactively. However, the Supreme Court 

resolved that split by holding that reimposition was authorized under § 3583(e)(3) for offenses committed before enactment of § 3583(h). Johnson v. United States, 120 S. Ct. 1795, 

1800–07 (2000). 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 145

5.01 Handling a disruptive or dangerous 

defendant 

Fed. R. Crim. P. 43(c) 

A. Removal of defendant 

A defendant who was initially present at trial, or who had pleaded guilty or 

nolo contendere, waives the right to be present . . . when the court warns the 

defendant that it will remove the defendant from the courtroom for disruptive 

behavior, but the defendant persists in conduct that justifies removal from the 

courtroom. . . . If the defendant waives the right to be present, the trial may 

proceed to completion, including the verdict’s return and sentencing, during 

the defendant’s absence. 

Fed. R. Crim. P. 43(c)(1)(C) and (2). 

 The Supreme Court held that a disruptive defendant, after appropriate 

warning, may be removed from the courtroom. Illinois v. Allen, 397 U.S. 337, 

344 (1970). (The Court also stated that a defendant may be cited for contempt or, “as a last resort,” allowed to remain in the courtroom bound and 

gagged. See infra section B: Restraint of defendant.) 

When the court is faced with a disruptive defendant: 

1. The court should warn the defendant that continuation of the disruptive conduct will lead to removal of the defendant from the courtroom.1

2. If the disruptive conduct continues, the court should determine

whether it warrants removal of the defendant.2

3. At the beginning of each session, the court should advise the defendant that he or she may return to the courtroom if the defendant assures the court that there will be no further disturbances.

4. The court should consider ways to allow the defendant to communicate with his or her attorney to keep apprised of the progress of the

trial. The court may consider making arrangements to allow the defendant to hear or see the proceedings via electronic means, if available.

1. One circuit held that, in a multidefendant case, “[n]otice to one defendant is notice to 

all present in the courtroom for purposes of Rule 43.” United States v. West, 877 F.2d 281, 287 

(4th Cir. 1989). Cf. United States v. Beasley, 72 F.3d 1518, 1530 (11th Cir. 1996) (although district court may not have personally warned defendant that he might be removed, it was sufficient that court warned defense counsel in presence of defendant). 

2. Whether the conduct is serious enough to warrant the defendant’s removal is generally in the discretion of the trial judge. Rule 43(c)(1)(C) simply states that it must be “conduct 

that justifies removal from the courtroom,” and the Supreme Court described it as conduct 

that is “so disorderly, disruptive, and disrespectful of the court that [defendant’s] trial cannot 

be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S. 337, 343 (1970). 
Section 5.01: Handling a disruptive or dangerous defendant 

146 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

5. The court should consider any other factors required by circuit law.3

 If the defendant is appearing pro se and standby counsel is present, the 

court should first warn the defendant that pro se status will be denied and 

that standby counsel will take over if there is further disruption. If pro se 

status is denied and standby counsel takes over, the defendant may be removed from the courtroom for any further disruption. 

B. Restraint of defendant (“shackling”) 

As the Supreme Court stated in Allen, disruptive defendants may, under 

certain circumstances, be physically restrained. The Court later expanded 

upon that holding in reference to defendants who are not merely disruptive 

but potentially dangerous. “Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right 

to remain free of physical restraints that are visible to the jury; that the right 

has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape 

prevention, or courtroom decorum.” Deck v. Missouri, 544 U.S. 622, 629 

(2005). Before a defendant can be visibly restrained in front of the jury, the 

court must “take account of special circumstances, including security concerns, that may call for shackling. . . . [A]ny such determination must be case 

specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” Id. at 632. 

When the court is faced with a potentially dangerous defendant:4

1. Consider less intrusive protective measures that are less likely to

prejudice the jury against the defendant, such as putting extra law

enforcement officers in the courtroom.5

2. Consider less visible measures, such as draping the defense table so

that leg shackles cannot be seen, or using “stun belts” that can be

worn underneath a defendant’s clothes.6

3. For example, the Eleventh Circuit requires courts to consider the potential prejudice

to the defense of the defendant’s absence in addition to the adequacy of the warning and 

degree of misconduct. See Foster v. Wainwright, 686 F.2d 1382, 1388 (11th Cir. 1982). 

4. The Court in Deck stated that the “[l]ower courts have disagreed about the specific 

procedural steps a trial court must take prior to shackling [and] about the amount and type of 

evidence needed to justify restraints,” 544 U.S. at 629, but the following common practices 

may provide guidance to courts that are considering restraining a defendant. 

5. Holbrook v. Flynn, 475 U.S. 560, 569 (1986) (although it must be determined on a caseby-case basis, compared with shackling, “the presence of guards at a defendant’s trial need 

not be interpreted as a sign that he is particularly dangerous or culpable”). 

6. See, e.g., United States v. Wardell, 591 F.3d 1279, 1294 (10th Cir. 2009) (“district court’s

decision to require a defendant to wear a stun belt during a criminal trial would appear ordinarily to pose no constitutional problem when: (1) the court makes a defendant-specific 

determination of necessity resulting from security concerns; and (2) it minimizes the risk of 

prejudice by, for instance, concealing the stun belt from the jury”); United States v. Brazel, 
Section 5.01: Handling a disruptive or dangerous defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 147

3. Allow defense counsel (or the defendant if pro se) the opportunity to 

respond to the court’s concerns.7

4. If the factual basis for restraint is disputed, consider holding an evidentiary hearing and making findings on the record.8

5. Make an independent evaluation based on the circumstances of the 

case and the individual defendant.9

6. If the court concludes that physical restraint is advisable, “impose no 

greater restraints than necessary to secure the courtroom . . . [and] 

take all practical measures, including a cautionary instruction, to 

minimize the prejudice resulting from a party appearing in physical 

restraints.”10

 

102 F.3d 1120, 1158 (11th Cir. 1997) (“The court’s use of cloths to cover all counsels’ tables so 

that the leg shackles were not visible significantly reduced the possibility of prejudice.”); 

United States v. Collins, 109 F.3d 1413, 1418 (9th Cir. 1997) (same). 

 7. See Sides v. Cherry, 609 F.3d 576, 586 (10th Cir. 2010) (“district courts should hold a 

proceeding [outside the presence of the jury] that allows the parties to offer argument 

bearing on the need for restraints as well as the extent of the restraints deemed necessary 

(if any)”); United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976) (“Counsel, or the 

defendant himself in appropriate cases, should be given an opportunity both to respond to 

the reasons presented and to persuade the judge that such measures are unnecessary.”); 

United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970) (“Whenever unusual visible 

security measures in jury cases are to be employed, we will require the district judge to state 

for the record, out of the presence of the jury, the reasons therefor and give counsel an 

opportunity to comment thereon, as well as to persuade him that such measures are 

unnecessary.”). 

 8. Theriault, 531 F.2d at 285 (“when unusual visible security measures are utilized before a jury, we will require that the district judge state for the record, outside the jury’s presence, the reasons for such action. . . . A formal evidentiary hearing may not be required, but 

if the factual basis for the extraordinary security is controverted, the taking of evidence and 

finding of facts may be necessary.” Accord United States v. Moore, 651 F.3d 30, 46 (D.C. Cir. 

2011) (citing Theriault regarding whether evidentiary hearing is required). 

 9. See, e.g., Moore, 651 F.3d at 46 (affirming, in part, because the district court “considered the security concerns presented by the particular defendants at trial before making the 

determination that stun belts were appropriate. It thoroughly examined factors relevant to 

each defendant and . . . made a determination based on those factors.”); United States v. 

Baker, 432 F.3d 1189, 1244 (11th Cir. 2005) (“if a judge intends to shackle a defendant, he 

must make a case specific and individualized assessment of each defendant in that particular trial”); United States v. Zuber, 118 F.3d 101, 103 (2d Cir. 1997) (“a presiding judge may 

not approve the use of physical restraints, in court, on a party to a jury trial unless the judge 

has first performed an independent evaluation—including an evidentiary hearing, where 

necessary—of the need to restrain the party”); United States v. Hack, 782 F.2d 862, 868 (10th 

Cir. 1986) (“The extent to which the security measures are needed should be determined by 

the trial judge on a case-by-case basis by ‘considering the person’s record, the crime 

charged, his physical condition, and other available security measures.’”) (citation omitted).

10. Sides, 609 F.3d at 586. See also Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir. 1982) (“a 

judge should consider less restrictive measures before deciding that a defendant should be 

shackled”). 
Section 5.01: Handling a disruptive or dangerous defendant 

148 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Other factors to consider: 

1. Do not defer to law enforcement officials—make an independent 

evaluation. 

 Although a court may take into account the recommendation of a 

U.S. marshal or other law enforcement official in deciding whether 

shackling is warranted, “trial judges should not blindly defer to the 

recommendation of law enforcement officials as to the appropriateness of shackling without independently reviewing the facts and circumstances thought to warrant such a security measure and carefully considering the legal ramifications of that decision.”11

2. Witnesses and civil trials 

 Some circuits have concluded that “the concerns expressed [about 

restraints] are applicable to parties in civil suits as well. . . . The principles consistently applied are that the trial court has discretion to 

order physical restraints on a party or witness when the court has 

found those restraints to be necessary to maintain safety or security; 

but the court must impose no greater restraints than are necessary, 

and it must take steps to minimize the prejudice resulting from the 

presence of the restraints.”12

 11. United States v. Mays, 158 F.3d 1215, 1226 (11th Cir. 1998). See also Sides, 609 F.3d at 

582 (agreeing with other circuits that, “though a district court may rely ‘heavily’ on advice 

from court security officers, it ‘bears the ultimate responsibility’ of determining what restraints are necessary”) (citation omitted); Lakin v. Stine, 431 F.3d 959, 964 (6th Cir. 2005) 

(trial court erred when it “simply deferred to the corrections officer’s request. Although a 

trial court might find a corrections officer’s opinion highly relevant to answering the ultimate inquiry as to whether shackling is necessary in a particular case, an individualized 

determination under the due process clause requires more than rubber stamping that request.”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir. 2003) (“It is the duty of the trial court, 

not correctional officers, to make the affirmative determination, in conformance with constitutional standards, to order the physical restraint of a defendant in the courtroom.”); Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995) (“If the court has deferred entirely to those 

guarding the prisoner, . . . it has failed to exercise its discretion.”); Woods v. Theiret, 5 F.3d 

244, 248 (7th Cir. 1993) (“While the trial court may rely ‘heavily’ on the marshals in evaluating the appropriate security measures to take with a given prisoner, the court bears the ultimate responsibility for that determination and may not delegate the decision to shackle 

an inmate to the marshals.”); Samuel, 431 F.2d at 615 (“We stress that the discretion is that of 

the district judge. He may not . . . delegate that discretion to the Marshal.”). 

12. Davidson, 44 F.3d at 1122–23. See also Sides, 609 F.3d at 581 (agreeing with other circuits “that the concerns expressed in Allen also apply in the context of civil trials”); Woods, 5 

F.3d at 246–47 (“analysis used to determine when restraints are necessary in criminal cases 

is also applicable in civil cases”); Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985) 

(“federal courts use the same standard of review in both defendant shackling and witness 

shackling cases”); Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982) (“the general rule 

against the use of physical restraints in the courtroom applies to defense witnesses as well 

as the defendant himself”). Cf. Duckett v. Godinez, 67 F.3d 734, 738 (9th Cir. 1995) (“relying 

on criminal case precedents, courts have held that when an individual’s level of 
Section 5.01: Handling a disruptive or dangerous defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 149

3. Use of stun belts 

 Some circuits have found that, although often concealed and 

thereby not visible to the jury, “stun belts plainly pose many of the 

same constitutional concerns as do other physical restraints,” and “a 

decision to use a stun belt must be subjected to at least the same 

‘close judicial scrutiny’ required for the imposition of other physical 

restraints.”13

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 41–43 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

 

dangerousness is a question the jury must decide in a civil proceeding, it is a violation of the 

right to a fair trial to compel that individual to appear before the jury bound in physical restraints”). 

13. United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002) (also noting that “[d]ue 

to the novelty of this technology, a court contemplating its use will likely need to make factual findings about the operation of the stun belt, addressing issues such as the criteria for 

triggering the belt and the possibility of accidental discharge”). See also Wardell, 591 F.3d at 

1293–94 (principles that apply to physical restraints “should apply to stun belts because, as 

numerous circuits have recognized, ‘[t]he use of stun belts, depending somewhat on their 

method of deployment, raises all of the traditional concerns about the imposition of physical 

restraints.’ . . . If seen or activated, a stun belt ‘might have a significant effect on the jury’s 

feelings about the defendant.’”) (citations omitted); United States v. Miller, 531 F.3d 340, 

344–45 (6th Cir. 2008) (Deck applies to use of “stun belt” on defendant during trial); Gonzalez, 341 F.3d at 900 (“The use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints.”). 

Cf. Chavez v. Cockrell, 310 F.3d 805, 809 (5th Cir. 2002) (where judge immediately “took steps 

to mitigate any prejudicial influence on the jury,” accidental activation of stun belt on first 

day of trial did not deny defendant the presumption of innocence). 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 151

5.02 Grants of immunity 

18 U.S.C. § 6002, 6003; 21 U.S.C. § 884; 28 C.F.R. § 0.175. 

The cited statutes provide for the entry of an order requiring an individual to 

give testimony or provide other information at any proceeding before or ancillary to a court or a grand jury of the United States after the court ensures 

compliance with the requirements of 18 U.S.C. §§ 6002, 6003, and 28 C.F.R. 

§ 0.175, or, in the case of testimony or information concerning controlled 

substances, compliance with 21 U.S.C. § 884 and 28 C.F.R. § 0.175. 

Procedure 

A. Review the motion of the U.S. attorney to satisfy yourself that 

1. the motion is made with the approval of the Attorney General, the 

Deputy Attorney General, or any designated assistant attorney general of the United States Department of Justice; 

2. the motion asserts that the testimony or other information from the 

individual may be necessary to the public interest; and 

3. the motion asserts that the individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination. 

B. If the above requirements have been met, enter an order reflecting the 

court’s satisfaction that the prerequisites have been met and ordering, 

pursuant to 18 U.S.C. § 6003 or 21 U.S.C. § 884, that 

1. the person shall give testimony or provide other information as to all 

matters about which the person may be interrogated before the court 

or the grand jury, testimony that he or she has refused to give or to 

provide on the basis of the privilege against self-incrimination; 

2. the order shall become effective only if, after the date of the order, 

the person refuses to testify or provide other information on the basis 

of his or her privilege against self-incrimination; 

3. no testimony or other information compelled from the person under 

the order, or any information directly or indirectly derived from such 

testimony or other information, may be used against the person in 

any criminal case except in a prosecution for perjury, for giving a false 

statement, or for otherwise failing to comply with the order; and 

4. the motion and order are to be sealed, if appropriate. 

C. Cause the (sealed) motion and order to be delivered to the clerk of court. 
Section 5.02: Grants of immunity 

152 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Other FJC sources 

Manual for Complex Litigation, Fourth 228 n.683 (2004) 

Pattern Criminal Jury Instructions 32 (1987) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 153

5.03 Invoking the Fifth Amendment 

The case law on this subject varies from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the practice of 

the district, and the preferences of the individual judge. 

A. If a witness refuses to answer a proper question and invokes the Fifth 

Amendment privilege to justify that refusal, the trial court must determine whether the privilege has been properly claimed. The Fifth 

Amendment privilege extends to 

1. answers that would support a conviction of the witness for violating a 

federal or state criminal statute; or 

2. answers that would furnish a link in the chain of evidence needed to 

prosecute the witness for violating a federal or state criminal statute. 

B. The following suggested procedure may be used when a witness claims 

the Fifth Amendment privilege: 

1. Excuse the jury. 

2. Explain to the witness the nature of the Fifth Amendment privilege. 

Ask the witness if he or she wishes to consult counsel. Consider the 

appointment of counsel. 

3. Have the question repeated to the witness, and ask the witness if he 

or she still refuses to answer the question. 

4. If the witness still refuses on the ground of the Fifth Amendment, the 

court should determine whether the claim of the privilege is appropriate. Be careful not to interrogate the witness about the claim in 

such a way as to force the witness to surrender the privilege in order 

to claim it. 

5. If the witness makes a prima facie showing of the validity of his or her 

claim, the party seeking the answer then has the burden to demonstrate that the answer could not possibly tend to incriminate the witness. 

6. Sustain the Fifth Amendment claim if you find that the witness has 

reasonable cause to believe that answering the particular question 

might tend to incriminate him or her. The criterion to be applied in 

making this determination is the possibility of prosecution, not the 

likelihood of prosecution. 

 As the Supreme Court found in Hoffman v. United States, 341 U.S. 

479, 486 (1951): 

 To sustain the privilege it need only be evident from the implication of 

the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered 
Section 5.03: Invoking the Fifth Amendment 

154 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

might be dangerous because injurious disclosure could result. The 

trial judge in appraising the claim must be governed as much by his 

personal perception of the peculiarities of the case as by the facts actually in evidence. 

7. The witness may not assert a blanket claim of the privilege as to all 

questions. For each question, the witness must assert or not assert 

the privilege. Out of the jury’s presence, the court must rule as to 

each question whether the witness’s claim of privilege is sustained or 

overruled. The court may sustain a blanket assertion of the privilege 

only if it concludes, after inquiry, that the witness could legitimately 

refuse to answer all relevant questions. 

Other FJC sources 

Manual for Complex Litigation, Fourth 101, 228, 525 (2004) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 155

5.04 Handling the recalcitrant witness 

Fed. R. Crim. P. 42 

The case law on this subject varies from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the practice of 

the district, and the preferences of the individual judge. 

 Refusal by a witness during trial or before a grand jury to answer a proper 

question, after having been ordered to do so by the court, constitutes contempt of court, and the witness may be subject to both civil and criminal 

contempt sanctions. See 18 U.S.C. § 401(3); 28 U.S.C. § 1826(a). See also infra 

sections 7.01 and 7.02. 

A. Recalcitrant witness during trial 

 When a witness refuses to answer a proper question during trial, consider the following procedure: 

1. Excuse the jury. 

2. Determine the reason for the refusal. (If the witness claims the Fifth 

Amendment privilege, see supra section 5.03: Invoking the Fifth 

Amendment.) 

3. If no valid Fifth Amendment claim or other good cause is shown, advise the witness 

(a) that the jury will be recalled and that the witness will be ordered 

to answer the question. 

(b) that if the witness persists in refusing to answer, he or she will be 

cited for civil contempt, and if found guilty, will be confined until 

he or she answers the question or until the trial ends. Advise the 

witness that he or she may be fined in addition to being confined. 

(c) that if the witness has not answered the question before the trial 

ends, he or she may then be cited for criminal contempt and, if 

found guilty, fined or imprisoned; that if the witness is found 

guilty of criminal contempt at a bench trial, he or she may be imprisoned for as much as six months; and that if a jury finds the 

witness guilty of criminal contempt, he or she may be imprisoned 

for as long as the judge in his or her discretion determines. (If the 

witness is currently serving another sentence, advise the witness 

that if he or she is confined for civil or criminal contempt, the confinement will be in addition to the sentence already being 

served.) 

4. The jury should then be recalled, the question re-asked, and the witness ordered to answer. 

5. If the witness refuses to answer, counsel should be permitted to examine the witness concerning other subject matter about which the 

witness is willing to testify. 
Section 5.04: Handling the recalcitrant witness 

156 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

6. After the witness has been examined 

(a) direct him or her to remain in court until the next recess; or 

(b) excuse the jury so that a time can be set for a hearing to determine if the witness should be found in civil contempt. 

[Note: The witness should be given a reasonable time to prepare for 

the hearing, but this time depends on the need for prompt action. If 

the trial is expected to be short, set an early hearing so that effective 

pressure to testify can be exerted on the witness before the trial ends. 

If the trial is expected to be lengthy, the hearing need not be held so 

promptly. (If, but only if, there is need for immediate action, the witness can be held in summary criminal contempt under Fed. R. Crim. 

P. 42(b) (formerly 42(a)) and committed at once for criminal contempt that occurred in the presence of the court. If committed for 

criminal contempt, the witness should be committed for a stated period of time but should be advised that the court would reconsider 

that sentence if the witness decided to testify during the trial. See, 

e.g., United States v. Wilson, 421 U.S. 309 (1975) (summary contempt 

under former Rule 42(a) appropriate for already imprisoned witnesses who refused to testify despite grant of immunity).1

) Advise 

the witness that he or she may be represented by an attorney at the 

hearing on the civil contempt citation and that if the witness cannot 

afford an attorney, one will be appointed.] 

7. If, at the hearing, the witness fails to show good cause why he or she 

should not be compelled to answer the question that the court ordered the witness to answer, he or she should be found in civil contempt and remanded into the marshal’s custody. Advise the witness 

that he or she may purge himself or herself of contempt and secure 

release by answering the question. 

8. Direct the marshal to return the witness to the courtroom before 

court convenes the next day. At that time ask the witness if he or she 

is prepared to answer the question which was asked of him or her. If 

the witness is not prepared to answer, again remand the witness into 

the marshal’s custody. Advise the witness to notify the marshal at 

once if he or she decides to answer the question, so that the witness 

can be returned to court and permitted to purge himself or herself of 

contempt. 

9. If the witness has not purged himself or herself of contempt by the 

time the trial ends, have him or her brought back into court. 

 

 1. Note that Wilson applies only to witnesses during a criminal trial. Witnesses before a 

grand jury should be given notice and a hearing under current Rule 42(a). See Harris v. 

United States, 382 U.S. 162 (1965). 
Section 5.04: Handling the recalcitrant witness 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 157

10. Pursuant to the procedure outlined in Fed. R. Crim. P. 42(a), advise 

the witness that he or she is being cited for criminal contempt for refusing to obey the court’s order. 

11. Set the matter down for hearing at a certain place and time to determine if the witness is guilty of criminal contempt. (Bear in mind that 

the maximum prison sentence that can be imposed after a bench 

trial is six months. For a prison sentence of more than six months, 

there must be a jury trial.) 

12. Advise the witness that he or she has a right to be represented by 

counsel at that hearing and that if the witness cannot afford counsel, 

the court will appoint an attorney. 

13. Release the witness from custody. Bail may be set to ensure the witness’s appearance at the hearing. 

B. Recalcitrant witness before grand jury 

 When a witness refuses to answer a proper question before a grand jury, 

consider the following procedure: 

1. Have the witness appear before the court out of the presence of the 

grand jury. 

2. Determine the reason for the refusal. (If the witness claims the Fifth 

Amendment privilege, see supra section 5.03: Invoking the Fifth 

Amendment.) 

3. If no valid Fifth Amendment claim or other good cause is shown, advise the witness 

(a) that he or she will be returned to the presence of the grand jury 

and that the court is ordering the witness to answer the question 

that he or she had previously refused to answer. 

(b) that if the witness persists in refusing, he or she will be cited for 

civil contempt and, if found guilty, may be confined for the term 

of the grand jury, including extensions, or for a period of eighteen 

months, or until the witness answers the question, whichever occurs first. Advise the witness that he or she may be fined in addition to being confined. 

(c) that if the witness has not answered the question before the term 

of the grand jury and its extensions expire, or after eighteen 

months have passed, whichever occurs first, the witness will be 

released from custody but may then be cited for criminal contempt, and if found guilty, may be fined or imprisoned; that if the 

witness is found guilty of criminal contempt at a bench trial, he or 

she may be imprisoned for as much as six months; and that if a 

jury finds the witness guilty of criminal contempt, he or she may 

be imprisoned for as long as the judge in his or her discretion determines. (If the witness is currently serving another sentence, 
Section 5.04: Handling the recalcitrant witness 

158 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

advise him or her that the confinement for criminal contempt 

would be in addition to the sentence currently being served.) 

4. Return the witness to the grand jury room.2

5. If the witness persists in refusing to answer the question before the 

grand jury, have him or her brought before the court and at that time 

advise the witness that he or she is being cited for civil contempt. Do 

not summarily adjudge the witness to be in contempt pursuant to 

Fed. R. Crim. P. 42(b). Rather, advise the witness when and where a 

hearing will be held on the civil contempt citation. Advise the witness 

that he or she may be represented by counsel at that hearing and 

that if the witness cannot afford counsel, the court will appoint an attorney. 

6. If the evidence warrants, adjudge the witness to be in civil contempt 

and order him or her committed for the term of the grand jury and its 

extensions, for eighteen months, or until he or she answers the question, whichever occurs first. 28 U.S.C. § 1826(a). 

7. Advise the witness that he or she will be released as soon as he or she 

has purged himself or herself of contempt by answering the question 

and that the witness should advise the marshal at once if he or she 

decides to answer the question. 

8. If the witness has not purged himself or herself of civil contempt before the term of the grand jury and its extensions expire or eighteen 

months have passed, whichever occurs first, the witness may be cited 

for criminal contempt pursuant to Fed. R. Crim. P. 42(a). 

9. If you decide to cite the witness for criminal contempt, advise the 

witness when and where the hearing will be held to determine if he or 

she should be punished for criminal contempt. (Bear in mind that 

the maximum prison sentence that can be imposed after a bench 

trial is six months. For a prison sentence of more than six months, 

there must be a jury trial.) 

10. Advise the witness that he or she has a right to be represented by 

counsel at the hearing and that if the witness cannot afford counsel, 

the court will appoint an attorney. 

11. Release the witness from custody. If necessary, set bail to ensure that 

the witness appears at the hearing on the criminal contempt citation. 

 

 2. This step may be unnecessary if the witness declares during the court proceeding that 

he or she will persist in refusing and that another opportunity to answer would be pointless. 
Section 5.04: Handling the recalcitrant witness 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 159

Other FJC sources 

Manual for Complex Litigation, Fourth 20 (2004) 

Manual on Recurring Problems in Criminal Trials 38–41 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 161

5.05 Criminal defendant’s motion for 

mistrial 

Fed. R. Crim. P. 26.3 

General guidelines 

When a criminal defendant moves for a mistrial, the general rule is that retrial is not barred by double jeopardy concerns. See United States v. Scott, 

437 U.S. 82, 93–94 (1978). However, there is one important exception to this 

rule: Retrial is barred if the motion was provoked by intentional government 

misconduct. 

Only where the governmental conduct in question is intended to “goad” the 

defendant into moving for a mistrial may a defendant raise the bar of double 

jeopardy to a second trial after having successfully aborted the first on his own 

motion. 

Oregon v. Kennedy, 456 U.S. 667, 676 (1982). 

The court must find that the intent of the government was to deliberately 

provoke a mistrial, not merely that the conduct was harassing or in bad faith. 

Prosecutorial conduct that might be viewed as harassment or overreaching, 

even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar 

retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. 

Id. at 675–76.

 Note that mistake or carelessness is not sufficient to support a double 

jeopardy claim. See, e.g., United States v. Johnson, 55 F.3d 976, 978 (4th Cir. 

1995); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992). Nor is 

“[n]egligence, even if gross.” United States v. Huang, 960 F.2d 1128, 1133 (2d 

Cir. 1992). Even a deliberate improper act that causes a mistrial does not 

prevent retrial if it was not intended to provoke a mistrial. United States v. 

White, 914 F.2d 747, 752 (6th Cir. 1990) (although prosecutor deliberately 

attempted to elicit from witness evidence that court had ruled inadmissible, 

court found that conduct was motivated by “prosecutorial inexperience”). 

 If the defendant moves for a mistrial with jeopardy attached on the specific ground of prosecutorial misconduct, the court should not deny a mistrial on that ground and then declare a mistrial without prejudice over the 

defendant’s objection unless the defendant consents or there is “manifest 

necessity” for a mistrial. See Weston v. Kernan, 50 F.3d 633, 636–38 (9th Cir. 

1995). See also Corey v. District Court of Vermont, Unit #1, Rutland Circuit, 917 

F.2d 88, 90–92 (2d Cir. 1990) (retrial prohibited where the defendant consented to mistrial only if jeopardy attached but court declared mistrial without prejudice). 

 Before a court may order a mistrial, Fed. R. Crim. P. 26.3 requires it to 

“give each defendant and the government an opportunity to comment on 
Section 5.05: Criminal defendant’s motion for mistrial 

162 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

the propriety of the order, to state whether that party consents or objects, 

and to suggest alternatives.” 

Multidefendant cases 

If only one or some of the defendants in a multidefendant case move successfully for mistrial, the court should give the other defendants an opportunity to object. Unless the nonmoving defendants join the motion or acquiesce to the decision,1

 the court should sever their cases or must find that 

there are grounds to declare a mistrial for those defendants, too. See, e.g.,

White, 914 F.2d at 753–55 (conviction must be vacated on double jeopardy 

grounds where the defendant did not have sufficient opportunity to object 

to other defendant’s mistrial motion at initial trial, the record did not indicate he joined the motion or otherwise consented to mistrial, and “there was 

no manifest necessity for declaring a mistrial in regard to him”).

 Courts should be particularly careful in multidefendant cases where 

some defendants would agree to a mistrial with prejudice but would object 

to mistrial without prejudice. See, e.g., United States v. Huang, 960 F.2d 1128, 

1134–36 (2d Cir. 1992) (where all four defendants moved for mistrial, but 

two specifically moved for mistrial with prejudice and objected to granting of 

mistrial without prejudice, double jeopardy prevented retrial because there 

was no manifest necessity to declare mistrial rather than sever the cases and 

proceed with original trial for them). 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 41–43 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

 

 1. If the defendant has a reasonable opportunity to object to the granting of a mistrial 

but does not, consent to the mistrial may be implied. See, e.g., United States v. DiPietro, 936 

F.2d 6, 10–11 (1st Cir. 1991). See also United States v. You, 382 F.3d 958, 965 (9th Cir. 2004) 

(“Where one defendant moves for a mistrial, and the other defendant, despite adequate opportunity to object, remains silent, the silent defendant impliedly consents by that silence 

to the mistrial and waives the right to claim a double jeopardy bar to retrial.”). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 163

5.06 Duty to disclose information favorable 

to defendant 

(Brady and Giglio material) 

A. Duty to disclose exculpatory information 

 1. In general 

 2. Information from law enforcement agencies 

 3. Ongoing duty 

 4. Disclosure favored 

B. Elements of a violation 

 1. Favorable to the accused 

 2. Suppression, willful or inadvertent 

 3. Materiality 

C. Timing of disclosure 

 1. In time for effective use at trial 

 2. Prior to a guilty plea? 

 3. Remedies for untimely disclosure 

 4. Jencks Act 

 5. Supervisory authority of district court 

D. Disputed disclosure 

E. Protective orders 

F. Summary 

Appendices 

A. FJC survey 

B. Justice Department policies and guidance 

C. Potential Brady or Giglio information 

Introduction 

Federal criminal discovery is governed by Rule 16 of the Federal Rules of 

Criminal Procedure and for certain specified matters by portions of Rules 12, 

12.1, 12.2, and 12.3.1 The Jencks Act, 18 U.S.C. § 3500, and Rule 26.2 govern 

the disclosure of witness statements at trial, and the Classified Information 

Procedures Act, 18 U.S.C. App. 3, governs discovery and disclosure when 

classified information related to national security is implicated. Prosecutors 

and defense lawyers should be familiar with these authorities, and judges 

typically know where to find the relevant law in deciding most discovery issues. 

 However, it sometimes is more challenging to understand the full scope 

of a prosecutor’s obligations with respect to a defendant’s constitutional 

 

 1. See also Rule 15, governing depositions for those limited circumstances in which 

depositions are permitted in criminal cases, and Rule 17, governing subpoenas. 
Section 5.06: Duty to disclose information favorable to defendant 

164 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

right to exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963), 

and impeachment material under Giglio v. United States, 405 U.S. 150 (1972), 

and to deal effectively with related disclosure disputes. Applying Brady and 

Giglio in particular cases can be difficult; it requires familiarity with Supreme 

Court precedent, circuit law, and relevant local rules and practices. 

 This section of the Benchbook is intended to give judges general guidance on the requirements of Brady and Giglio by providing a basic summary 

of the case law interpreting and applying these decisions. For further reference, the appendices provide three other sources of information: a link to 

the Federal Judicial Center’s recent report summarizing a national survey of 

Rule 16 and disclosure practices in the district courts; a link to the “Policy Regarding Disclosure of Exculpatory and Impeachment Information” in the 

United States Attorneys’ Manual of the Department of Justice; and a list of 

examples of exculpatory or impeachment information, disclosure of which 

may be required under Brady or Giglio. 

 Because every Brady or Giglio inquiry is fact-specific, the depth of such 

an inquiry can vary considerably from case to case. Judges are encouraged, 

as part of efficient case management, to be mindful of the particular disclosure requirements in each case and to resolve disclosure disputes quickly to 

avoid unnecessary delay and expense later. The material provided in this 

section is for informational purposes only; it is not meant to recommend a 

particular course of action when disclosure issues arise. 

 Although Brady exculpatory material and Giglio impeachment material 

are sometimes distinguished, courts often refer to them together as “Brady

material” or “exculpatory material,” and this section generally follows that 

practice. 

A. Duty to disclose exculpatory information 

1. In general 

In Brady, the Supreme Court held that “suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.” 373 U.S. at 87. The Court later 

held that the prosecution has an obligation to disclose such information 

even in the absence of a defense request. See Banks v. Dretke, 540 U.S. 668, 

695–96 (2004); Kyles v. Whitley, 514 U.S. 419, 433 (1995); United States v. 

Agurs, 427 U.S. 97, 107, 110–11 (1976). 

 In Giglio, the Supreme Court extended the prosecution’s obligations to 

include the disclosure of information affecting the credibility of a government witness. See 405 U.S. at 154–55. As the Court later explained, 

“[i]mpeachment evidence, . . . as well as exculpatory evidence, falls within 

the Brady rule” because it is “evidence favorable to an accused, . . . so that, if 

disclosed and used effectively, it may make the difference between convic-
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 165

tion and acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985) (quotations omitted). 

2. Information from law enforcement agencies 

Under Brady, the prosecutor is required to find and disclose favorable evidence initially known only to law enforcement officers and not to the prosecutor. The individual prosecutor in a specific case has an affirmative “duty to 

learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. at 

437. See also Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam) (“Brady suppression occurs when the government fails to turn over 

even evidence that is ‘known only to police investigators and not to the 

prosecutor’”) (quoting Kyles v. Whitley, 514 U.S. at 438). 

3. Ongoing duty 

A prosecutor’s disclosure obligations under Brady are ongoing: they begin as 

soon as the case is brought and continue throughout the pretrial and trial 

phases of the case.2 See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (“the 

duty to disclose is ongoing; information that may be deemed immaterial 

upon original examination may become important as the proceedings progress”).3

 If Brady information is known to persons on the prosecution team, 

including law enforcement officers, it should be disclosed to the defendant 

as soon as reasonably possible after its existence is recognized.

 

 2. The Supreme Court has declined to extend Brady disclosure obligations to evidence 

that the government did not possess during the trial but only became available “after the 

defendant was convicted and the case was closed.” See District Attorney’s Office for Third 

Judicial District v. Osborne, 557 U.S. 52, 68–69 (2009) (“Brady is the wrong framework” for 

prisoner’s post-conviction attempt to retest DNA evidence using a newer test that was not 

available when he was tried). “[A] post-conviction claim for DNA testing is properly pursued 

in a [42 U.S.C.] § 1983 action.” Skinner v. Switzer, 131 S. Ct. 1289, 1293, 1300 (2011) (also 

noting that “Brady claims have ranked within the traditional core of habeas corpus and outside the province of § 1983”). Cf. Whitlock v. Brueggemann, 682 F.3d 567, 587–88 (7th Cir. 

2012) (distinguishing Osbourne: “Brady continues to apply [in a post-trial action] to an assertion that one did not receive a fair trial because of the concealment of exculpatory evidence known and in existence at the time of that trial”). 

 3. See also Steidl v. Fermon, 494 F.3d 623, 630 (7th Cir. 2007) (“For evidence known to the 

state at the time of the trial, the duty to disclose extends throughout the legal proceedings 

that may affect either guilt or punishment, including post-conviction proceedings.”); Leka v. 

Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“Brady requires disclosure of information that the 

prosecution acquires during the trial itself, or even afterward”); Smith v. Roberts, 115 F.3d 

818, 819–20 (10th Cir. 1997) (same, applying Brady to impeachment evidence that prosecutor 

did not learn of until “[a]fter trial and sentencing but while the conviction was on direct 

appeal. . . . [T]he duty to disclose is ongoing and extends to all stages of the judicial process.”). 
Section 5.06: Duty to disclose information favorable to defendant 

166 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

4. Disclosure favored 

When it is uncertain whether information is favorable or useful to a defendant, “the prudent prosecutor will err on the side of transparency, resolving 

doubtful questions in favor of disclosure.” Cone v. Bell, 556 U.S. 449, 470 n.15 

(2009). See also Kyles v. Whitley, 514 U.S. at 439–40; Agurs, 427 U.S. at 108.4 

B. Elements of a violation 

There are three elements of a Brady violation: (1) the information must be 

favorable to the accused; (2) the information must be suppressed—that is, 

not disclosed—by the government, either willfully or inadvertently; and 

(3) the information must be “material” to guilt or to punishment. See Strickler 

v. Greene, 527 U.S. 263, 281–82 (1999). 

1. Favorable to the accused 

Information is “favorable to the accused either because it is exculpatory, or 

because it is impeaching.” Strickler, 527 U.S. at 281–82. Most circuits have 

held that information may be favorable even if it is not admissible as evidence itself, as long as it reasonably could lead to admissible evidence. See, 

e.g., United States v. Triumph Capital Group, Inc., 544 F.3d 149, 162–63 (2d 

Cir. 2008) (Brady information “need not be admissible if it ‘could lead to admissible evidence’ or ‘would be an effective tool in disciplining witnesses 

during cross-examination by refreshment of recollection or otherwise’”) 

(quoting United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002)).5

 

 4. Cf. United States v. Moore, 651 F.3d 30, 99–100 (D.C. Cir. 2011) (“This is particularly 

true where the defendant brings the existence of what he believes to be exculpatory or impeaching evidence or information to the attention of the prosecutor and the district court, in 

contrast to a general request for Brady material.”). 

 5. See also United States v. Wilson, 605 F.3d 985, 1005 (D.C. Cir. 2010) (no Brady violation 

because undisclosed information was not admissible nor would it have led to admissible 

evidence or effective impeachment); Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003) (“we 

think it plain that evidence itself inadmissible could be so promising a lead to strong exculpatory evidence that there could be no justification for withholding it”); Spence v. Johnson, 

80 F.3d 989, 1005 at n.14 (5th Cir. 1996) (“inadmissible evidence may be material under 

Brady”); Spaziano v. Singletary, 36 F.3d 1028, 1044 (11th Cir. 1994) (“A reasonable probability of a different result is possible only if the suppressed information is itself admissible 

evidence or would have led to admissible evidence.”); United States v. Phillip, 948 F.2d 241, 

249 (6th Cir. 1991) (“information withheld by the prosecution is not material unless the information consists of, or would lead directly to, evidence admissible at trial for either substantive or impeachment purposes”). Cf. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam) (where it was “mere speculation” that inadmissible materials might lead to the 

discovery of admissible exculpatory evidence, those materials are not subject to disclosure 

under Brady); United States v. Velarde, 485 F.3d 553, 560 (10th Cir. 2007) (if defendant “is 

able to make a showing that further investigation under the court’s subpoena power very 

likely would lead to the discovery of [admissible material] evidence,” defendant may “request leave to conduct discovery”); Madsen v. Dormire, 137 F.3d 602, 604 (8th Cir. 1998) (citing Wood, there was no Brady violation where undisclosed information was not admissible 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 167

2. Suppression, willful or inadvertent 

Whether exculpatory information has been suppressed by the government 

is a matter for inquiry first by defense counsel making a request of the 

prosecutor. If defense counsel remains unsatisfied, the trial court may make 

its own inquiry and, if appropriate, require the government to produce the 

undisclosed information for in camera inspection by the court. See also discussion in infra section D: Disputed disclosure.

 It does not matter whether a failure to disclose is intentional or inadvertent, since “under Brady an inadvertent nondisclosure has the same impact 

on the fairness of the proceedings as deliberate concealment.” Strickler, 527 

U.S. at 288; Agurs, 427 U.S. at 110 (“Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. . . . If the suppression of evidence results in constitutional error, it is 

because of the character of the evidence, not the character of the prosecutor.”).6

 

 Information will not be considered “suppressed” for Brady purposes if 

the defendant already knew about it7

 or could have obtained it with reasonable effort.8

 However, suppression still may be found in this situation if a de-

 

and could not be used to impeach; court did not address whether it could lead to admissible 

evidence). But cf. Hoke v. Netherland, 92 F.3d 1350, 1356 at n.3 (4th Cir. 1996) (reading Wood

to hold that inadmissible evidence is, “as a matter of law, ‘immaterial’ for Brady purposes”). 

 6. See also Porter v. White, 483 F.3d 1294, 1305 (11th Cir. 2007) (“The Brady rule thus imposes a no-fault standard of care on the prosecutor. If favorable, material evidence exclusively in the hands of the prosecution team fails to reach the defense—for whatever reason—and the defendant is subsequently convicted, the prosecution is charged with a Brady

violation, and the defendant is entitled to a new trial.”); Gantt v. Roe, 389 F.3d 908, 912 (9th 

Cir. 2004) (“Brady has no good faith or inadvertence defense”). 

 7. See, e.g., Parker v. Allen, 565 F.3d 1258, 1277 (11th Cir. 2009) (“there is no suppression 

if the defendant knew of the information or had equal access to obtaining it”); United States 

v. Zichittello, 208 F.3d 72, 103 (2d Cir. 2000) (“Even if evidence is material and exculpatory, it 

‘is not “suppressed”’ by the government within the meaning of Brady ‘if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of 

any exculpatory evidence.’”) (citations omitted); Rector v. Johnson, 120 F.3d 551, 558–59 (5th 

Cir. 1997) (same); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (“No Brady violation exists where a defendant ‘knew or should have known the essential facts permitting 

him to take advantage of any exculpatory information,’ . . . or where the evidence is available to defendant from another source.”) (citations omitted). Cf. United States v. Quintanilla, 

193 F.3d 1139, 1149 (10th Cir. 1999) (“a defendant’s independent awareness of the exculpatory evidence is critical in determining whether a Brady violation has occurred. If a defendant already has a particular piece of evidence, the prosecution’s disclosure of that evidence 

is considered cumulative, rendering the suppressed evidence immaterial.”). 

 8. United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998) (“government has no 

Brady burden when the necessary facts for impeachment are readily available to a diligent 

defender”); United States v. Dimas, 3 F.3d 1015, 1019 (7th Cir. 1993) (when “the defendants 

might have obtained the evidence themselves with reasonable diligence . . . , then the evidence was not ‘suppressed’ under Brady and they would have no claim”); Hoke, 92 F.3d at 
Section 5.06: Duty to disclose information favorable to defendant 

168 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

fendant did not investigate further because the prosecution represented 

that it had turned over all disclosable information or that there was no disclosable material. In Strickler, the prosecutor had an “open file” policy, but 

exculpatory information had been kept out of the files. The Supreme Court 

held that the “petitioner has established cause for failing to raise a Brady

claim prior to federal habeas because (a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution’s open file 

policy as fulfilling the prosecution’s duty to disclose such evidence; and 

(c) the Commonwealth confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings that petitioner had already 

received ‘everything known to the government.’” 527 U.S. at 283–89.9

 The 

Court reached the same conclusion in a later case in which the prosecution 

withheld disclosable information after having “asserted, on the eve of trial, 

that it would disclose all Brady material.”10

 Suppression may also be found when disclosure is so late that the defense is unable to make effective use of the information at trial. See discussion in infra section C: Timing of disclosure.

3. Materiality 

(a) Definition 

The most problematic aspect of Brady for prosecutors and trial judges is the 

third element: the requirement that the favorable information suppressed 

by the government be “material.” Under Brady, information is considered 

“material” “when there is a reasonable probability that, had the evidence 

 

1355 (“The strictures of Brady are not violated, however, if the information allegedly withheld by the prosecution was reasonably available to the defendant.”). 

 9. The Court cautioned, however, that “[w]e do not reach, because it is not raised in this 

case, the impact of a showing by the State that the defendant was aware of the existence of 

the documents in question and knew, or could reasonably discover, how to obtain them.” Id.

at 288 n.33. See also Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004) (citing and quoting 

Strickler for proposition that “if a prosecutor asserts that he complies with Brady through an 

open file policy, defense counsel may reasonably rely on that file to contain all materials 

the State is constitutionally obligated to disclose under Brady”). 

10. Banks v. Dretke, 540 U.S. 668, 693–96 (2004) (“Our decisions lend no support to the 

notion that defendants must scavenge for hints of undisclosed Brady material when the 

prosecution represents that all such material has been disclosed. As we observed in Strickler, 

defense counsel has no ‘procedural obligation to assert constitutional error on the basis of 

mere suspicion that some prosecutorial misstep may have occurred.’ 527 U.S. at 286–287”). 

See also Gantt v. Roe, 389 F.3d at 912–13 (“While the defense could have been more diligent, 

. . . this does not absolve the prosecution of its Brady responsibilities. . . . Though defense 

counsel could have conducted his own investigation, he was surely entitled to rely on the 

prosecution’s representation that it was sharing the fruits of the police investigation.”). Cf. 

Bell v. Bell, 512 F.3d 223, 236 (6th Cir. 2008) (distinguishing Banks from instant case, in 

which the facts known to defendant “strongly suggested that further inquiry was in order, 

whether or not the prosecutor said he had turned over all the discoverable evidence in his 

file, and the information was a matter of public record”). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 169

been disclosed, the result of the proceeding would have been different.” 

Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quotations omitted). “A reasonable 

probability does not mean that the defendant ‘would more likely than not 

have received a different verdict with the evidence,’ only that the likelihood 

of a different result is great enough to ‘undermine[] confidence in the outcome of the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S. at 434) (alteration in 

original).11

 This definition of “materiality” necessarily is retrospective. It is used by 

an appellate court after trial to review whether a failure to disclose on the 

part of the government was so prejudicial that the defendant is entitled to a 

new trial. While Brady requires that materiality be considered even before or 

during trial, obviously it may not always be apparent in advance whether 

the suppression of a particular piece of information ultimately might “undermine [] confidence in the outcome of the trial.”12For this reason, as noted 

earlier, the Supreme Court explicitly has recommended erring on the side of 

disclosure when there is uncertainty before or during trial about an item’s 

materiality: “[T]here is a significant practical difference between the pretrial 

decision of the prosecutor and the post-trial decision of the judge. Because 

we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until 

the entire record is complete, the prudent prosecutor will resolve doubtful 

questions in favor of disclosure.”13At the same time, the Court reiterated the 

 

11. See also Banks v. Dretke, 540 U.S. at 698–99 (“[o]ur touchstone on materiality is Kyles 

v. Whitley”); Kyles v. Whitley, 514 U.S. at 434 (“The question is not whether the defendant 

would more likely than not have received a different verdict with the evidence, but whether 

in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of 

confidence.”); United States v. Bagley, 473 U.S. 667, 682 (1985) (“A ‘reasonable probability’ 

is a probability sufficient to undermine confidence in the outcome.”). 

12. Smith v. Cain, 132 S. Ct. at 630. See also United States v. Jordan, 316 F.3d 1215, 1252 

n.79 (11th Cir. 2003) (“In the case at hand, . . . the defendants’ Brady claims involve material 

that was produced both before and during the defendants’ trial. In such a scenario, because 

the trial has just begun, the determination of prejudice is inherently problematical.”). 

13. United States v. Agurs, 427 U.S. 97, 108 (1976). See also Cone v. Bell, 556 U.S. at 470 

n.15 (“As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.”); United States v. Starusko, 729 

F.2d 256, 261 (3d Cir. 1984) (“it is difficult to analyze, prior to trial, whether potential impeachment evidence falls within Brady without knowing what role a certain witness will 

play in the government’s case”). Cf. Jordan, 316 F.3d at 1251 (“under Brady, the government 

need only disclose during pretrial discovery (or later, at the trial) evidence which, in the 

eyes of a neutral and objective observer, could alter the outcome of the proceedings. Not 

infrequently, what constitutes Brady material is fairly debatable. In such cases, the prosecutor should mark the material as a court exhibit and submit it to the court for in camera inspection.”); United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984) (“Any doubt concerning the applicability of Brady to any specific document . . . should have been submitted to the 

court for an in camera review.”). 

 Some district courts have enacted local rules that eliminate the Brady materiality requirement for pretrial disclosure of exculpatory information. See discussion at pp. 16–17 in 
Section 5.06: Duty to disclose information favorable to defendant 

170 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

“critical point” that “the prosecutor will not have violated his constitutional 

duty of disclosure unless his omission is of sufficient significance to result in 

the denial of the defendant’s right to a fair trial.”14

(b) Cumulative effect of suppressed evidence 

Although each instance of nondisclosure is examined separately, the “suppressed evidence [is] considered collectively, not item by item” in determining materiality. Kyles v. Whitley, 514 U.S. at 436–37 & n.10 (“showing that the 

prosecution knew of an item of favorable evidence unknown to the defense 

does not amount to a Brady violation, without more. But the prosecution, 

which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and 

make disclosure when the point of ‘reasonable probability’ is reached”).15

The undisclosed evidence “must be evaluated in the context of the entire 

 

Laural Hooper et al., Fed. Judicial Ctr., A Summary of Responses to a National Survey of Rule 

16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases 

(2011). See also United States v. Price, 566 F.3d 900, 913 n.14 (9th Cir. 2009) (“[f]or the benefit 

of trial prosecutors who must regularly decide what material to turn over, we note favorably 

the thoughtful analysis” of two district courts that held that “the ‘materiality’ standard usually associated with Brady . . . should not be applied to pretrial discovery of exculpatory materials”). 

14. Agurs, 427 U.S. at 109–10 (also cautioning that “[t]he mere possibility that an item of 

undisclosed information might have helped the defense, or might have affected the outcome 

of the trial, does not establish ‘materiality’ in the constitutional sense”). See also United 

States v. Lemmerer, 277 F.3d 579, 588 (1st Cir. 2002) (“The same standard applies when the 

claim is one of delayed disclosure rather than complete suppression. However, in delayed 

disclosure cases, we need not reach the question whether the evidence at issue was ‘material’ under Brady unless the defendant first can show that defense counsel was ‘prevented 

by the delay from using the disclosed material effectively in preparing and presenting the 

defendant’s case.’”); United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001) (“Although the 

government’s obligations under Brady may be thought of as a constitutional duty arising 

before or during the trial of a defendant, the scope of the government’s constitutional 

duty—and, concomitantly, the scope of a defendant’s constitutional right—is ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial. . . . The government therefore has a so-called ‘Brady

obligation’ only where non-disclosure of a particular piece of evidence would deprive a 

defendant of a fair trial.”); Starusko, 729 F.2d at 261 (there is “no violation of Brady unless 

the government’s nondisclosure infringes the defendant’s fair trial right”). 

15. See also Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008) (“The materiality of 

suppressed evidence is ‘considered collectively, not item by item.’ . . . [E]ach additional . . . 

Brady violation further undermines our confidence in the decision-making process”) (quoting Kyles); Maharaj v. Sec’y for Dept. of Corrections, 432 F.3d 1292, 1310 (11th Cir. 2005) (“the 

district court followed the appropriate methodology, considering each Brady item individually, and only then making a determination about the cumulative impact”); United States v. 

Sipe, 388 F.3d 471, 477 (5th Cir. 2004) (“Even if none of the nondisclosures standing alone 

could have affected the outcome, when viewed cumulatively in the context of the full array of 

facts, we cannot disagree with the conclusion of the district judge that the government’s 

nondisclosures undermined confidence in the jury’s verdict.”). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 171

record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the 

other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Agurs, 427 U.S. at 112.16

C. Timing of disclosure 

1. In time for effective use at trial

As noted earlier, information may be considered “suppressed” for Brady

purposes if disclosure is delayed to the extent that the defense is not able to 

make effective use of the information in the preparation and presentation of 

its case at trial. How much preparation a defendant needs in order to use 

Brady material effectively—which determines how early disclosure must be 

made by the prosecution—depends upon the circumstances of each case. 

Disclosure before trial (and often well before trial) is always preferable and 

may be required if the material is significant, complex, or voluminous, or 

may lead to other exculpatory material after further investigation.17 In some 

circumstances, however, disclosure right before, or even during, trial has 

been found to be sufficient.18 “It is not feasible or desirable to specify the 

 16. See also United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999) (court must “evaluate the impact of the undisclosed evidence not in isolation, but in light of the rest of the trial 

record”); Porretto v. Stalder, 834 F.2d 461, 464 (5th Cir. 1987) (“Omitted evidence is deemed 

material when, viewed in the context of the entire record, it creates a reasonable doubt as to 

the defendant’s guilt that did not otherwise exist.”). 

17. See DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (“The more a piece of evidence is valuable and rich with potential leads, the less likely it will be that late disclosure 

provides the defense an ‘opportunity for use.’”); Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 

2001) (“When such a disclosure is first made on the eve of trial, or when trial is under way, 

the opportunity to use it may be impaired. The defense may be unable to divert resources 

from other initiatives and obligations that are or may seem more pressing. And the defense 

may be unable to assimilate the information into its case. . . . Moreover, new witnesses or 

developments tend to throw existing strategies and preparation into disarray.”). See also 

United States v. Garner, 507 F.3d 399, 405–07 (6th Cir. 2007) (defendant “did not receive a 

fair trial” where cell phone records that would have allowed impeachment of critical prosecution witness were not disclosed until the morning of trial and the defense was not given 

sufficient time to investigate records: “The importance of the denial of an opportunity to 

impeach this witness cannot be overstated.”); United States v. Fisher, 106 F.3d 622, 634–35 

(5th Cir. 1997) (new trial warranted where government did not disclose until last day of trial 

an FBI report containing impeachment evidence that directly contradicted testimony of key 

witness and defense was not able to make meaningful use of evidence), abrogated on other 

grounds by Ohler v. United States, 529 U.S. 753, 758–59 (2000). 

18. A majority of the circuits that have addressed this point have held that disclosure 

may be deemed timely, at least in some circumstances, when the defendant is able to effectively use the information at trial, even if disclosure occurs after the trial has begun. See, e.g., 

United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011) (“there is no Brady violation so 

long as the exculpatory or impeaching evidence is disclosed at a time when it still has 

value”); United States v. Celis, 608 F.3d 818, 836 (D.C. Cir. (2010) (“the critical point is that 
Section 5.06: Duty to disclose information favorable to defendant 

172 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

extent or timing of disclosure Brady and its progeny require, except in terms 

of the sufficiency, under the circumstances, of the defense’s opportunity to 

use the evidence when disclosure is made. Thus, disclosure prior to trial is 

not [always] mandated. . . . At the same time, however, the longer the prosecution withholds information, or (more particularly) the closer to trial the 

disclosure is made, the less opportunity there is for use.” Leka v. Portuondo,

257 F.3d 89, 100 (2d Cir. 2001).19 

 In light of these considerations, and because the effect of suppression 

usually cannot be evaluated fully until after trial, potential Brady material 

ordinarily should be disclosed as soon as reasonably possible after its existence is known by the government, and disclosures on the eve of or during 

trial should be avoided unless there is no other reasonable alternative. 

2. Prior to a guilty plea? 

The Supreme Court has held that disclosure of impeachment information is 

not required before a guilty plea is negotiated or accepted. See United States 

 

disclosure must occur in sufficient time for defense counsel to be able to make effective use 

of the disclosed evidence”); Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (“a defendant is not prejudiced [by untimely disclosure] if the evidence is received in time for its 

effective use at trial”); United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007) (“the Government must make disclosures in sufficient time that the defendant will have a reasonable 

opportunity to act upon the information efficaciously,” that is, “in a manner that gives the 

defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial”); Blake v. Kemp, 758 F.2d 523, 532 n.10 

(11th Cir. 1985) (“In some instances [disclosure of potential Brady material the day before 

trial] may be sufficient. . . . However, . . . some material must be disclosed earlier. . . . This is 

because of the importance of some information to adequate trial preparation.”) (citations 

omitted). 

19. See also Gantt v. Roe, 389 F.3d at 912 (“That [relevant] pieces of information were 

found (or their relevance discovered) only in time for the last day of testimony underscores 

that disclosure should have been immediate: Disclosure must be made ‘at a time when [it] 

would be of value to the accused.’”) (citation omitted); United States v. McKinney, 758 F.2d 

1036, 1049–50 (5th Cir. 1985) (“If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed 

as early as it might have and, indeed, should have been.”); United States v. Pollack, 534 F.2d 

964, 973–74 (D.C. Cir. 1976) (“Disclosure by the government must be made at such a time as 

to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure. . . . The 

trial judge must be given a wide measure of discretion to ensure satisfaction of this standard. . . . Courts can do little more in determining the proper timing for disclosure than balance in each case the potential dangers of early discovery against the need that Brady purports to serve of avoiding wrongful convictions.”); Grant v. Alldredge, 498 F.2d 376, 382 (2d 

Cir. 1976) (“Although it well may be that marginal Brady material need not always be disclosed upon request prior to trial,” evidence indicating that another suspect may have committed the crime “was without question ‘specific, concrete evidence’ of a nature requiring 

pretrial disclosure to allow for full exploration and exploitation by the defense” that “would 

have had a ‘material bearing on defense preparation’ . . . and therefore should have been 

revealed well before the commencement of the trial.”) (citations omitted). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 173

v. Ruiz, 536 U.S. 622, 629–30 (2002) (“impeachment information is special in 

relation to the fairness of a trial, not in respect to whether a plea is voluntary,” 

and due process does not require disclosure of such impeachment information before a plea) (emphasis in original). The holding in Ruiz was limited to 

impeachment material because “the proposed plea agreement at issue . . . 

specifie[d that] the Government [would] provide ‘any information establishing the factual innocence of the defendant,’” Id. at 631. The Court “has 

not addressed the question of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the 

guilty plea context.” United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 

2010) (emphasis in original).20

3. Remedies for untimely disclosure  

Untimely disclosure that effectively suppresses Brady information may result in sanctions. The decision whether to impose sanctions is within the 

sound discretion of the trial judge: “Where the district court concludes that 

the government was dilatory in its compliance with Brady, to the prejudice of 

the defendant, the district court has discretion to determine an appropriate 

remedy, whether it be exclusion of the witness, limitations on the scope of 

permitted testimony, instructions to the jury, or even mistrial. The choice of 

remedy also is within the sound discretion of the district court. Fed. R. Crim. 

P. 16(d)(2) authorizes the district court in cases of non-compliance with discovery obligations to ‘permit the discovery or inspection,’ ‘grant a continu-

 

20. Compare United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (rejecting defendant’s argument that the limitation on the Supreme Court’s discussion in Ruiz “to impeachment evidence implies that exculpatory evidence is different and must be turned over before entry of a plea”), with McCann v. Mangialardi, 337 F.3d 782, 787–88 (7th Cir. 2003) 

(“Ruiz indicates a significant distinction between impeachment information and exculpatory evidence of actual innocence. Given this distinction, it is highly likely that the Supreme 

Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant’s factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea”). See also United 

States v. Mathur, 624 F.3d 498, 504–07 (1st Cir. 2010) (rejecting defendant’s claim that “potentially exculpatory” information and impeachment information should have been disclosed before his plea, court held that the information was not material and added, “Although we recognize that plea negotiations are important, that fact provides no support for 

an unprecedented expansion of Brady.”); Jones v. Cooper, 311 F.3d 306, 315 n.5 (4th Cir. 

2002) (in a death penalty case, “[t]o the extent that appellant contends that he would not 

have pled guilty had he been provided the [potentially mitigating] information held by the 

jailor, this claim is foreclosed by” Ruiz). Cf. Ferrara v. United States, 456 F.3d 278, 293 (1st 

Cir. 2006) (prosecution’s “blatant misconduct” and “affirmative misrepresentations” in 

withholding material exculpatory information—which it was obligated to disclose not only 

under Brady v. Maryland but also under local court rules and a court order—rendered defendant’s guilty plea involuntary under Brady v. United States, 397 U.S. 742 (1970)); United 

States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (“under certain limited circumstances, the 

prosecution’s violation of Brady can render a defendant’s plea involuntary”). 
Section 5.06: Duty to disclose information favorable to defendant 

174 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

ance,’ ‘prohibit the party from introducing the evidence not disclosed,’ or 

‘enter any other order that is just under the circumstances.’”21

 In most cases, “[t]he customary remedy for a Brady violation that surfaces mid-trial is a continuance and a concomitant opportunity to analyze 

the new information and, if necessary, recall witnesses.”22 In fact, failure to 

request a continuance, or an “outright rejection of a proffered continuance,” 

is taken as an indication that the defendant is able to use the information 

effectively despite the delay.23 

 In an extreme case, dismissal may be warranted: “Brady violations are 

just like other constitutional violations. Although the appropriate remedy 

will usually be a new trial, . . . a district court may dismiss the indictment 

when the prosecution’s actions rise . . . to the level of flagrant prosecutorial 

misconduct.”24

4. Jencks Act 

There is no consensus among the circuits as to whether the government’s 

constitutional obligation to produce Brady information in a timely manner 

 21. United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009). See also United States v. 

Johnston, 127 F.3d 380, 391 (5th Cir. 1997) (district court has “real latitude” to fashion appropriate remedy for alleged Brady errors, including delayed disclosure); United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996) (“The district court has broad discretion to redress 

discovery violations in light of their seriousness and any prejudice occasioned the defendant,” and court properly refused to dismiss indictment for delay in disclosing Brady material).

22. Mathur, 624 F.3d at 506. See also United States v. Collins, 415 F.3d 304, 311 (4th Cir. 

2005) (continuance is preferable to motion to dismiss as remedy for late disclosure); United 

States v. Kelly, 14 F.3d 1169, 1176 (7th Cir. 1994) (when “a Brady disclosure is made during 

trial, the defendant can seek a continuance of the trial to allow the defense to examine or 

investigate, if the nature or quantity of the disclosed Brady material makes an investigation 

necessary”). 

23. Mathur, 624 F.3d at 506. See also Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994) 

(petitioner “cannot convert his tactical decision not to seek a recess or continuance into a 

Brady claim in this habeas petition”); United States v. Adams, 834 F.2d 632, 635 (7th Cir. 

1987) (holding that delayed disclosure did not prejudice defendant partly based on fact that 

defendant did not request continuance or recess); United States v. Holloway, 740 F.2d 1373, 

1381 (6th Cir. 1984) (where defense counsel made no request for a continuance after delayed disclosure, “we conclude that the timing of the disclosure did not prejudice” the defendant). 

24. United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008) (“Because the district 

court did not clearly err in finding that the government recklessly violated its discovery 

obligations and made flagrant misrepresentations to the court, we hold that the dismissal 

was not an abuse of discretion.”). Accord Government of Virgin Islands v. Fahie, 419 F.3d 

249, 255 (3d Cir. 2005) (“While retrial is normally the most severe sanction available for a 

Brady violation, where a defendant can show both willful misconduct by the government, 

and prejudice, dismissal may be proper.”). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 175

supersedes the timing requirements of the Jencks Act, 18 U.S.C. § 3500.25

Some courts have attempted to harmonize the two rules, usually by finding 

that the timing of disclosure was sufficient under either standard to allow 

the defendant to make effective use of the information.26

 There may be instances in which the nature of impeaching information 

warrants a delay in disclosure by the government. Even if the information 

might be helpful to a defendant in impeaching a witness’s testimony, the 

government might not determine whether it actually will call the witness until shortly before, or even during, the trial. There is also the chance that a 

witness will choose not to cooperate or could be put in jeopardy by early disclosure.27 

Brady and the Jencks Act serve different purposes, and although their 

disclosure obligations often overlap, they are not always coextensive, and 

 

25. Compare, e.g., United States v. Rittweger, 524 F.3d 171, 181 n.4 (2d Cir. 2008) (“Complying with the Jencks Act, of course, does not shield the government from its independent 

obligation to timely produce exculpatory material under Brady—a constitutional requirement that trumps the statutory power of 18 U.S.C. § 3500.”), with United States v. Presser, 844 

F.2d 1275, 1283–84 (6th Cir. 1988) (“If impeachment evidence is within the ambit of the 

Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evidence. The clear and consistent rule of this circuit is that the intent of Congress expressed in 

the Act must be adhered to and, thus, the government may not be compelled to disclose 

Jencks Act material before trial. . . . Accordingly, neither Giglio nor Bagley alter the statutory 

mandate”). 

26. See, e.g., Presser, 844 F.2d at 1283–84 (“so long as the defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial, we fail to 

see how the Constitution is violated. Any prejudice the defendant may suffer as a result of 

disclosure of the impeachment evidence during trial can be eliminated by the trial court 

ordering a recess in the proceedings in order to allow the defendant time to examine the 

material and decide how to use it.”); United States v. Kopituk, 690 F.2d 1289, 1339 n.47 (11th 

Cir. 1982) (“It has been held that ‘when alleged Brady material is contained in Jencks Act 

material, disclosure is generally timely if the government complies with the Jencks Act.’”) 

(citations omitted). 

27. See, e.g., United States v. Rodriguez, 496 F.3d 221, 228 n.6 (2d Cir. 2007) (“We recognize that in many instances the Government will have good reason to defer disclosure until 

the time of the witness’s testimony, particularly of material whose only value to the defense 

is as impeachment of the witness by reference to prior false statements. In some instances, 

earlier disclosure could put the witness’s life in jeopardy, or risk the destruction of evidence. 

Also at times, the Government does not know until the time of trial whether a potential cooperator will plead guilty and testify for the Government or go to trial as a defendant.”); 

United States v. Pollack, 534 F.2d 964, 973–74 (D.C. Cir. 1976) (noting that there can be 

“situations in which premature disclosure would unnecessarily encourage those dangers 

that militate against extensive discovery in criminal cases, e.g., potential for manufacture of 

defense evidence or bribing of witnesses. Courts can do little more in determining the 

proper timing for disclosure than balance in each case the potential dangers of early discovery against the need that Brady purports to serve of avoiding wrongful convictions.”). Cf. 

United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984) (“We recognize that, generally, it is 

difficult to analyze, prior to trial, whether potential impeachment evidence falls within 

Brady without knowing what role a certain witness will play in the government’s case.”). 
Section 5.06: Duty to disclose information favorable to defendant 

176 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

there may or may not be a conflict between their respective timing requirements. “All Jencks Act statements are not necessarily Brady material. The 

Jencks Act requires that any statement in the possession of the government—exculpatory or not—that is made by a government witness must be 

produced by the government during trial at the time specified by the statute. Brady material is not limited to statements of witnesses but is defined as 

exculpatory material; the precise time within which the government must 

produce such material is not limited by specific statutory language but is 

governed by existing case law. Definitions of the two types of investigatory 

reports differ, the timing of production differs, and compliance with the 

statutory requirements of the Jencks Act does not necessarily satisfy the due 

process concerns of Brady.” Starusko, 729 F.2d at 263 (emphasis in original).28

5. Supervisory authority of district court 

“[I]t must be remembered that Brady is a constitutional mandate. It exacts 

the minimum that the prosecutor, state or federal, must do” to avoid violating a defendant’s due process rights. United States v. Beasley, 576 F.2d 626, 

630 (5th Cir. 1978) (emphasis added). As it is not otherwise specified by rule 

or case law, district courts have the discretionary authority “to dictate by 

court order when Brady material must be disclosed.” Starusko, 729 F.2d at 

261 (“the district court has general discretionary authority to order the pretrial disclosure of Brady material ‘to ensure the effective administration of 

the criminal justice system.’”) (citation omitted).29 Some districts have done 

 28. See also Rodriguez, 496 F.3d at 224–26 (oral statements by witness that were never 

written down or recorded did not fall under Jencks Act but could be disclosable under 

Brady/Giglio: “The Jencks Act requires the Government to produce to the defendant any 

‘statement’ by the witness that ‘relates to the subject matter as to which the witness has testified.’ 18 U.S.C. § 3500(b); see id. § 3500(e) (defining ‘statement’). The term ‘statement,’ 

however, is defined to include only statements that have been memorialized in some concrete form, whether in a written document or electrical recording. . . . The obligation to disclose information covered by the Brady and Giglio rules exists without regard to whether that 

information has been recorded in tangible form.”); United States v. Phibbs, 999 F.2d 1053, 

1088 (6th Cir. 1993) (“Unlike the Jencks Act, the force of Brady and its progeny is not limited 

to the statements and reports of witnesses.”). Cf. United States v. Coppa, 267 F.3d 132, 146 

(2d Cir. 2001) (“a District Court’s power to order pretrial disclosure is constrained by the 

Jencks Act,” and the district court exceeded its authority in ordering disclosure “of not only 

those witness statements that fall within the ambit of Brady/Giglio, and thus may be required 

to be produced in advance of trial despite the Jencks Act, but also those witness statements 

that, although they might indeed contain impeachment evidence, do not rise to the level of 

materiality prescribed by Agurs and Bagley for mandated production”). 

29. See generally United States v. Hasting, 461 U.S. 499, 505 (1983) (“[I]n the exercise of 

supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the 

supervisory powers are threefold: to implement a remedy for violation of recognized rights 

. . . ; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury . . . ; and finally, as a remedy designed to deter illegal con-
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 177

this through local rules, setting pretrial deadlines for disclosure of Brady and 

Giglio material.30 Otherwise, “[h]ow the trial court proceeds to enforce disclosure requirements is largely a matter of discretion to be exercised in light of 

the facts of each case.” United States v. Valera, 845 F.2d 923, 927 (11th Cir. 

1988).31 

D. Disputed disclosure 

If a defendant requests disclosure of materials that the government contends are not discoverable under Brady, the trial court may conduct an in 

camera review of the disputed materials.32 “To justify such a review, the defendant must make some showing that the materials in question could contain favorable, material evidence. . . . This showing cannot consist of mere 

speculation. . . . Rather, the defendant should be able to articulate with 

some specificity what evidence he hopes to find in the requested materials, 

why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”33

 

duct.”) (citations omitted); United States v. W.R. Grace, 526 F.3d 499, 508–09 (9th Cir. 2008) 

(en banc) (“We begin with the principle that the district court is charged with effectuating the 

speedy and orderly administration of justice. There is universal acceptance in the federal 

courts that, in carrying out this mandate, a district court has the authority to enter pretrial 

case management and discovery orders designed to ensure that the relevant issues to be 

tried are identified, that the parties have an opportunity to engage in appropriate discovery 

and that the parties are adequately and timely prepared so that the trial can proceed efficiently and intelligibly”). See also Fed. R. Crim. P. 57(b) (“Procedure when there is no controlling law: A judge may regulate practice in any manner consistent with federal law, these 

rules, and the local rules of the district.”). 

30. See discussion of local rules in Laural Hooper et al., Fed. Judicial Ctr., A Summary of 

Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases 11–18 (2011). 

31. See also United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir. 2005) (“methods of enforcing disclosure requirements in criminal trials are generally left to the discretion of the 

trial court”); United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002) (same); United States 

v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979) (“The government argues that it was 

not required to follow certain provisions of . . . the standing discovery order because those 

provisions were broader in scope than the requirements adopted by the Supreme Court in 

Brady. This argument is without merit. It is within the sound discretion of the district judge to 

make any discovery order that is not barred by higher authority.”). 

32. See, e.g., United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011). 

33. Id. at 268–69 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)). See also 

Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001) (“A defendant seeking an in camera inspection to determine whether files contain Brady material must at least make a ‘plausible 

showing’ that the inspection will reveal material evidence. . . . Mere speculation is not 

enough.”); United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998) (same); Love v. Johnson, 

57 F.3d 1305, 1313 (4th Cir. 1995) (same); United States v. Navarro, 737 F.2d 625, 631 (7th Cir. 

1984) (“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due 
Section 5.06: Duty to disclose information favorable to defendant 

178 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

E. Protective orders 

For good cause, such as considerations of witness safety or national security, 

a trial judge may fashion an appropriate protective order to the extent necessary in a particular case, consistent with the defendant’s constitutional 

rights. See, e.g., United States v. Williams Companies, Inc., 562 F.3d 387, 396 

(D.C. Cir. 2009) (discussing balancing of “the prosecution’s affirmative duty 

to disclose material evidence ‘favorable to an accused,’” Rule 16(d)(1)’s provision that, “‘for good cause,’ the district court may ‘deny, restrict, or defer 

discovery or inspection or grant other appropriate relief,’” and defendant’s 

right to fair trial). See also the Classified Information Procedures Act, 18 

U.S.C. App. 3, for procedures regarding protective orders for classified information. 

F. Summary 

This section of the Benchbook is meant to provide a general guide to the 

Brady line of case law. Every case is different, however, and presents its own 

particular facts and circumstances that will affect the types of Brady/Giglio

disclosure issues (if any) that may arise and how such issues may be handled most appropriately. Ideally, both prosecutors and defense attorneys 

will know and fulfill their respective responsibilities without significant judicial intervention. However, even if things appear to be going smoothly, a 

judge may want to monitor the situation, perhaps using status conferences 

to ask if information is being fully and timely exchanged. A district’s particular legal culture is important. In districts where there is a history of poor cooperation between prosecutors and the defense bar, judges may need to 

take a more active role in ensuring Brady compliance than they might in districts where there is an “open file” discovery policy and a history of trust. A 

district’s local rules or standing orders also may provide specific rules for 

handling disclosure. 

 

process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court.”). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 179

Appendix A. FJC survey 

The Federal Judicial Center recently conducted a comprehensive review of 

Brady practices in federal courts, surveying “all federal district and magistrate judges, U.S. Attorneys’ Offices, and federal defenders, and a sample of 

defense attorneys in criminal cases that terminated during calendar year 

2009. The surveys collected empirical data on whether to amend Rule 16 and 

collected views regarding issues, concerns, or problems surrounding pretrial 

discovery and disclosure in the federal district courts.” Laural Hooper et al., 

Federal Judicial Center, A Summary of Responses to a National Survey of 

Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices 

in Criminal Cases 7 (2011). 

 In addition to the survey results, the FJC report contains an analysis of 

district court rules and standing orders that cover disclosure requirements 

under Brady and Giglio. A separate appendix reprints the rules and orders 

from thirty-eight districts. The rules range from basic reiterations of Brady

and Giglio to very detailed instructions and deadlines. The report and the 

appendices can be accessed at http://cwn.fjc.dcn/fjconline/home.nsf/ 

pages/1356. 
Section 5.06: Duty to disclose information favorable to defendant 

180 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Appendix B. Justice Department policies and guidance 

Two documents set forth the current criminal discovery policies of the Department of Justice. The first is Section 9-5.001 of the United States Attorney’s 

Manual, titled “Policy Regarding Disclosure of Exculpatory and Impeachment Information” (as updated June 10, 2010), which largely follows established case law in outlining a prosecutor’s responsibilities to disclose exculpatory information, though in some instances it goes beyond what is 

required. It can be accessed at http://www.justice.gov/usao/eousa/foia_ 

reading_room/usam/title9/5mcrm.htm#9-5.001. 

 The second document is a memorandum issued by Deputy Attorney 

General David Ogden on January 4, 2010, which provides “Guidance for 

Prosecutors Regarding Criminal Discovery.” It goes beyond Brady and Giglio

and also outlines a prosecutor’s obligations under Rules 16 and 26.2, as well 

as the Jencks Act, 18 U.S.C. § 3500. Usually called “The Ogden Memorandum,” it is “intended to assist Department prosecutors to understand their 

obligations and to manage the discovery process” and can be found at 

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00

165.htm. 

 Note that these documents are internal policy guidelines. They do not, 

as the “Policy” states, “provide defendants with any additional rights or 

remedies,” and they are “not intended to have the force of law or to create or 

confer any rights, privileges, or benefits.” While it may be useful to know 

what information prosecutors are gathering and should be disclosing, these 

guidelines are not legal obligations to be enforced by a court. Unlike a violation of Brady or Giglio, a failure to follow Justice Department policies is not by 

itself a basis for a trial judge to impose sanctions, exclude evidence, or declare a mistrial, or for an appellate court to reverse a conviction. 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 181

Appendix C. Potential Brady or Giglio information 

The following is a list of the types of material that may be discoverable under 

Brady or Giglio. The examples are culled from case law, district court local 

rules, and Department of Justice guidelines for prosecutors. Citations from 

Supreme Court and appellate cases are provided to assist judges who may 

be faced with similar situations. The list is not exhaustive, and whether the 

disclosure of any item is or is not required must be determined in light of the 

specific facts and circumstances of each case. 

1. Exculpatory information under Brady

(a) information that is inconsistent with any element of any crime charged 

in the indictment or that tends to negate the defendant’s guilt of any of 

the crimes charged 

Brady v. Maryland, 373 U.S. 83, 84 (1963) (confession by codefendant); 

Finley v. Johnson, 243 F.3d 215, 221–22 (5th Cir. 2001) (affirmative defense: necessity); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st 

Cir. 1993) (prosecution had independently corroborated information 

that would have strengthened defendant’s credibility in claiming duress); United States v. Spagnoulo, 960 F.2d 990, 993–95 (11th Cir. 1992) 

(psychiatric evaluation done during pretrial detention could have 

strengthened insanity defense). 

(b) failure of any person who participated in an identification procedure to 

make a positive identification of the defendant, whether or not the government anticipates calling the person as a witness at trial 

Smith v. Cain, 132 S. Ct. 627, 629–30 (2012) (the only eyewitness told police on night of murder and a few days later that he could not make an 

identification); Kyles v. Whitley, 514 U.S. 419, 423–25 (1995) (six eyewitness statements contained physical details that were inconsistent with 

defendant and more closely resembled state’s key witness). 

(c) any information that links someone other than the defendant to the 

crime (e.g., a positive identification of someone other than the defendant) 

DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (evidence that 

another person confessed to stabbing the victim); Monroe v. Angelone,

323 F.3d 286, 313, 316 n.20 (4th Cir. 2003) (undisclosed evidence that car 

driven by someone other than defendant was seen speeding away from 

murder scene); United States v. Robinson, 39 F.3d 1115, 1116–19 (10th 

Cir. 1994) (description by eyewitness of person who picked up cocaine 

closely matched another witness rather than defendant). 
Section 5.06: Duty to disclose information favorable to defendant 

182 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(d) information that casts doubt on the accuracy of any evidence—including 

witness testimony—that the prosecutor intends to rely on to prove an 

element of any of the crimes charged in the indictment, or that might 

have a significant bearing on the admissibility of that evidence in the 

case-in-chief 

United States v. Triumph Capital Group, Inc., 544 F.3d 149, 162–65 (2d Cir. 

2008) (suppressed notes of FBI agent cast doubt on whether defendant 

had intent to commit offense); Benn v. Lambert, 283 F.3d 1040, 1060–62 

(9th Cir. 2002) (investigative report concluding that fire was accidental 

and not arson, which prosecution had used as aggravating factor in murder case); Ballinger v. Kerby, 3 F.3d 1371, 1376 (10th Cir. 1993) (undisclosed photograph most likely would have “destroyed” credibility of key 

prosecution witness); United States ex rel. Smith v. Fairman, 769 F.2d 386, 

391 (7th Cir. 1985) (evidence that the gun defendant allegedly fired at 

police was inoperable). 

(e) any classified or otherwise sensitive national security material disclosed 

to defense counsel or made available to the court in camera that tends 

directly to negate the defendant’s guilt 

United States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012) (standard for 

discovery under Classified Information Procedures Act is whether evidence is “relevant and helpful” to defense, not Brady’s stricter materiality standard); United States v. Mejia, 448 F.3d 436, 456–57 (D.C. Cir. 2006) 

(same). See also United States v. Aref, 533 F.3d 72, 79–80 (2d Cir. 2008) 

(classified information must be “relevant and helpful,” interpreted by 

the court as “material to the defense,” but to be “helpful or material to 

the defense, evidence need not rise to the level that would trigger the 

Government’s obligation under Brady”; information can be “helpful” 

without being “‘favorable’ in the Brady sense”). 

(f) any information favorable and material to the defendant in the sentencing phase 

Brady v. Maryland, 373 U.S. 83, 85–86 (1963) (defendant’s sentence of 

death could have been affected by codefendant’s admission that he, 

rather than defendant, committed actual killing during robbery); Cone v. 

Bell, 556 U.S. 449, 474–75 (2009) (death sentence could have been affected by evidence that defendant may have been drunk or high when 

committing murders); United States v. Weintraub, 871 F.2d 1257, 1261–65 

(5th Cir. 1989) (prior inconsistent statement by key witness describing 

lower amount of drugs sold by defendant that could affect his sentence). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 183

2. Impeachment information under Giglio

(a) all statements made orally or in writing by any witness the prosecution 

intends to call in its case-in-chief that are inconsistent with other statements made by that same witness 

Strickler v. Greene, 527 U.S. 263, 282 (1999) (undisclosed witness statements inconsistent with trial testimony); Kyles v. Whitley, 514 U.S. 419, 

441–46 (1995) (same); Youngblood v. West Virginia, 547 U.S. 867, 868–70 

(2006) (per curiam) (note written by two victim witnesses that contradicted testimony). 

(b) all plea agreements entered into by the government in this case or related cases with any witness the government intends to call 

Douglas v. Workman, 560 F.3d 1156, 1174–75 (10th Cir. 2009) (undisclosed deal between prosecutor and key witness); Silva v. Brown, 416 

F.3d 980, 986–87 (9th Cir. 2005) (as part of his plea deal reducing charges 

against him and limiting his sentence in return for testifying, one of 

three murder suspects agreed to refrain from undergoing psychiatric 

evaluation so as to avoid questions about his mental capacity). 

(c) any favorable dispositions of criminal charges pending against witnesses 

the prosecutor intends to call 

Akrawi v. Booker, 572 F.3d 252, 263 (6th Cir. 2009) (informal agreement to 

reduce charges against witness in different case in return for his testimony against defendant); Douglas v. Workman, 560 F.3d 1156, 1166–67 

(10th Cir. 2009) (several instances of prosecutor dropping charges in 

other cases against witness in exchange for testimony against defendant); Singh v. Prunty, 142 F.3d 1157, 1162 (9th Cir. 1998) (key witness 

had several pending charges against him dropped during prosecution of 

defendant). 

(d) offers or promises made or other benefits provided, directly or indirectly, 

to any witness in exchange for cooperation or testimony, including: 

(1) dismissed or reduced charges 

Wolfe v. Clarke, 691 F.3d 410, 417–18 (4th Cir. 2012) (witness who actually killed drug supplier was told he might have capital murder 

charges reduced if he testified that defendant drug dealer hired him 

to do the shooting); United States v. Smith, 77 F.3d 511, 513–16 (D.C. 

Cir. 1996) (key prosecution witness, who was originally charged as 

codefendant, had other felony charges dismissed); Blankenship v. 

Estelle, 545 F.2d 510, 513–14 (5th Cir. 1977) (promise to drop all 

charges against two witnesses in exchange for testimony against defendant); 
Section 5.06: Duty to disclose information favorable to defendant 

184 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(2) immunity or offers of immunity 

Horton v. Mayle, 408 F.3d 570, 578–81 (9th Cir. 2005) (alleged promise 

of immunity to key witness); Haber v. Wainwright, 756 F.2d 1520, 

1523 (11th Cir. 1985) (alleged promise by state attorney to grant immunity from prosecution on numerous prior offenses in exchange for 

testimony); 

(3) expectations of downward departures or reduction of sentence 

Douglas v. Workman, 560 F.3d 1156, 1174–75 (10th Cir. 2009) (assistance to key witness with pre-parole release and reinstatement of lost 

good-time credits); Tassin v. Cain, 517 F.3d 770, 778–79 (5th Cir. 2008) 

(key witness led to believe she would receive reduced sentence in her 

case if she testified against husband in his case); Reutter v. Solem,

888 F.2d 578, 581–82 (8th Cir. 1989) (state’s key witness was scheduled to go before parole board—of which prosecutor was a member—

seeking a sentence commutation just a few days after he was to testify against defendant); United States v. Gerard, 491 F.2d 1300, 1303–

04 (9th Cir. 1974) (promise to testifying codefendant, who earlier 

pled guilty, to recommend probation); 

(4) assistance in other criminal proceedings—federal, state, or local 

Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008) (district attorney’s office 

dropped four pending charges after witness met with prosecutor with 

offer to testify); United States v. Risha, 445 F.3d 298, 299–302 (3d Cir. 

2006) (key witness expected, and later received, “an extremely favorable plea agreement” on unrelated state charges); Benn v. Lambert,

283 F.3d 1040, 1057 (9th Cir. 2002) (prosecutor arranged for informant to be released without being charged after stop for traffic offense led to arrest on outstanding warrants); 

(5) considerations regarding forfeiture of assets, forbearance in seeking 

revocation of professional licenses or public benefits, waiver of tax liability, or promises not to suspend or debar a government contractor 

United States v. Shaffer, 789 F.2d 682, 688–89 (9th Cir. 1986) (government’s failure to initiate asset forfeiture proceedings or enforce civil 

liability for unpaid taxes related to key witness’s former drug dealing 

indicated leniency in return for cooperation); 

(6) stays of deportation or other immigration benefits 

United States v. Blanco, 392 F.3d 382 (9th Cir. 2004) (undocumented 

alien working as paid confidential informant was given “special parole visa through INS” in return for cooperation with DEA); United 

States v. Sipe, 388 F.3d 471, 488–89 (5th Cir. 2004) (while waiting to 

testify against defendant, illegal aliens who were caught trying to enter the United States received “significant benefits, including Social 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 185

Security cards, witness fees, permits allowing travel to and from Mexico, travel expenses, living expenses, some phone expenses, and 

other benefits”); 

(7) monetary or other benefits, paid or promised 

United States v. Bagley, 473 U.S. 667, 683–84 (1985) (payments to witnesses for assistance in undercover drug operation and testimony in 

court); Robinson v. Mills, 592 F.3d 730, 737–38 (6th Cir. 2010) (witness 

who provided the only evidence contradicting defendant’s selfdefense claim worked as paid confidential informant for local 

authorities before and after defendant’s trial); United States v. Boyd,

55 F.3d 239, 244–45 (7th Cir. 1995) (witness gang members “received 

a continuous stream of unlawful, indeed scandalous, favors from 

staff at the U.S. Attorney’s office while jailed [and] awaiting the trial 

of the defendants,” including lax supervision that allowed drug use 

and drug dealing, long distance telephone calls, and sexual contact 

with visitors); United States v. Librach, 520 F.2d 550, 553 (8th Cir. 

1975) (“Government’s failure to disclose protective custody and its 

substantial payment of almost $10,000 to” primary witness). Cf. Wilson v. Beard, 589 F.3d 651, 662 (3d Cir. 2009) (officer “loaned money, 

interest free, to [witness] during the time period when [witness] 

acted as a police informant”); 

(8) non-prosecution agreements 

Giglio v. United States, 405 U.S. 150, 152–55 (1972) (promise to key 

witness—and alleged coconspirator—that he would not be prosecuted if he testified against defendant); Monroe v. Angelone, 323 F.3d 

286, 312–14 (4th Cir. 2003) (prosecution promised not to prosecute 

key witness—a convicted felon—for possession of a firearm); United 

States v. Sanfilippo, 564 F.2d 176, 177–79 (5th Cir. 1977) (witness was 

promised he would not be prosecuted in a separate case if he testified); 

(9) letters to other law enforcement officials setting forth the extent of a 

witness’s assistance or making recommendations on the witness’s 

behalf 

Jackson v. Brown, 513 F.3d 1057, 1070–72 (9th Cir. 2008) (law enforcement personnel promised prisoner-witness to bring his cooperation to attention of judges and prosecutors in other cases to help him 

get reduced sentences); United States v. Bigeleisen, 625 F.2d 203, 208 

(8th Cir. 1980) (in exchange for testimony, government agreed to 

write letter to Parole Commission outlining cooperation of witness 

who was imprisoned for other offense); 
Section 5.06: Duty to disclose information favorable to defendant 

186 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(10) relocation assistance or more favorable conditions of confinement 

Quezada v. Scribner, 611 F.3d 1165, 1168–69 (9th Cir. 2010) (question 

whether relocation payments witness received were sufficient to warrant evidentiary hearing for Brady violation); Jackson v. Brown, 513 

F.3d 1057, 1070–71 (9th Cir. 2008) (promise to recommend that witness be allowed to serve California sentence in Arizona to be closer to 

his family); Bell v. Bell, 512 F.3d 223, 232–33 (6th Cir. 2008) (in exchange for testifying, witness who was in jail for other offenses 

sought placement in different building and participation in workrelease program). Cf. United States v. Talley, 164 F.3d 989, 1003 (6th 

Cir. 1999) (where witness “was the government’s key witness and his 

credibility was at issue throughout the trial, failure to disclose a relocation benefit to the jury would have violated the rule set forth in 

Giglio”); 

(11) consideration or benefits to culpable or at-risk third parties 

LaCaze v. Warden Louisiana Correctional Institute for Women, 645 F.3d 

728, 735–36 (5th Cir.) (before admitting to shooting victim and implicating defendant, witness received assurances from prosecutor that 

his 14-year-old son would not be prosecuted), opinion amended on 

denial of reh’g en banc, 647 F.3d 1175 (2011); Harris v. Lafler, 553 F.3d 

1028, 1033–35 (6th Cir. 2009) (key witness was promised his girlfriend 

would be released from custody if he incriminated defendant). Cf.

Graves v. Dretke, 442 F.3d 334, 342–44 (5th Cir. 2006) (prosecution did 

not reveal that the key witness—himself a possible suspect in murder case—tried to protect his wife from prosecution but had earlier 

made statement that she was present during crime). 

(e) prior convictions of witnesses the prosecutor intends to call 

United States v. Bernal-Obeso, 989 F.2d 331, 332–33 (9th Cir. 1993) (misinformation about criminal record of key government witness who was confidential informant); Ouimette v. Moran, 942 F.2d 1, 10–11 (1st Cir. 1991) 

(prosecution failed to disclose main witness’s numerous convictions and 

deals he made with prosecution to testify); United States v. Auten, 632 

F.2d 478 (5th Cir. 1980) (codefendant granted immunity for testimony 

had prior criminal record). 

(f) pending criminal charges against any witness known to the government 

Sivak v. Hardison, 658 F.3d 898, 909–11 (9th Cir. 2011) (letters to other 

county prosecutor urging dismissal of pending charge against witness); 

United States v. Kohring, 637 F.3d 895, 903–04 (9th Cir. 2010) (key witness 

faced charges of sexual misconduct with minor); Cargall v. Mullin, 317 

F.3d 1196, 1215–16 (10th Cir. 2003) (“forbearance on potential charges 

. . . to secure the cooperation of a witness” must be disclosed to defense). 
Section 5.06: Duty to disclose information favorable to defendant 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 187

(g) prior specific instances of conduct by any witness known to the government that could be used to impeach the witness under Rule 608 of the 

Federal Rules of Evidence, including any finding of misconduct that reflects upon truthfulness 

United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2010) (alleged attempts by key witness to suborn perjurious testimony in different case); 

United States v. Torres, 569 F.3d 1277, 1282–83 (10th Cir. 2009) (evidence 

that confidential informant breached prior agreement with DEA and 

continued to use illegal drugs despite testifying that she had stopped); 

United States v. Velarde, 485 F.3d 553, 561–63 (10th Cir. 2007) (information that victim had made false accusations of similar nature); Benn v. 

Lambert, 283 F.3d 1040, 1054–56 (9th Cir. 2002) (informant’s history of 

committing crimes and “regularly” lying while acting as informant); 

United States v. O’Conner, 64 F.3d 355, 357–59 (8th Cir. 1995) (per curiam) 

(two witnesses attempted to influence testimony of another witness by 

threatening him and his family). 

(h) substance abuse, mental health issues, or physical or other impairments 

known to the government that could affect any witness’s ability to perceive and recall events 

Gonzalez v. Wong, 667 F.3d 965, 983–84 (9th Cir. 2011) (medical reports 

indicating “jailhouse informant” witness was schizophrenic and had history of lying); Wilson v. Beard, 589 F.3d 651, 660–62 (3d Cir. 2009) (government witness’s history of severe mental problems which showed witness was prescribed psychotropic drugs during relevant time period; 

another witness also had undisclosed mental issues); Benn v. Lambert,

283 F.3d 1040, 1056 (9th Cir. 2002) (evidence that key witness was using 

drugs during trial). 

(i) information known to the government that could affect any witness’s 

bias, such as: 

(1) animosity toward the defendant 

United States v. Aviles-Colon, 536 F.3d 1, 19–21 (1st Cir. 2008) (evidence that defendant and codefendant were “at war” would have 

advanced defendant’s claim that he was not part of charged drug 

conspiracy); United States v. Sipe, 388 F.3d 471, 477 (9th Cir. 2004) 

(evidence not revealed until presentence report that key witness 

“personally disliked” defendant). Cf. Schledwitz v. United States, 169 

F.3d 1003, 1014–15 (6th Cir. 1999) (key witness, portrayed as “neutral 

and disinterested expert” during petitioner’s fraud prosecution, actually had for years been actively involved in investigating petitioner 

and interviewing witnesses against him); United States v. Steinberg,

99 F.3d 1486, 1491 (9th Cir. 1996) (informant, who was key witness, 
Section 5.06: Duty to disclose information favorable to defendant 

188 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

owed defendant money, thus giving him incentive to send defendant to prison). 

(2) previous relationship with law enforcement authorities 

Robinson v. Mills, 592 F.3d 730, 737 (6th Cir. 2010) (key government 

witness worked as paid informant in other criminal cases before and 

after defendant’s trial); United States v. Torres, 569 F.3d 1277, 1282–

83 (10th Cir. 2009) (two prior undisclosed contracts between confidential informant witness and DEA); United States v. Shaffer, 789 F.2d 

682, 688–89 (9th Cir. 1986) (key witness was informant for government in earlier, different drug investigation). 

(j) Prosecutorial misconduct 

United States v. Scheer, 168 F.3d 445, 449–53 (11th Cir. 1999) (threatening 

remark by prosecutor to “critical” prosecution witness who was on probation that if he did not “come through for us” he would be sent back to 

jail); United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995) (prosecutor failed to correct representations he made to jury which were damaging to defendant’s duress defense, despite learning before trial ended 

that they were actually false); United States v. Kojayan, 8 F.3d 1315, 1318–

19 (9th Cir. 1993) (prosecution refused to reveal that a witness it chose 

not to call had signed a cooperation agreement to testify truthfully if requested and instead falsely claimed at trial that witness had invoked 

Fifth Amendment right to refuse to testify). Cf. Douglas v. Workman, 560 

F.3d 1156, 1192–94 (10th Cir. 2009) (prosecutor’s “active concealment” of 

Brady violation that prevented defendant from presenting claim in 

timely fashion warranted allowing claim as a second or successive request for habeas relief). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 189

6.01 Civil case management 

Fed. R. Civ. P. 16 and 26 

I. The judge’s role 

II. Initial case management (pre-Rule 16 conference) 

III. Rule 16 case-management conferences and orders 

IV. Ongoing case management 

V. Final pretrial conference 

VI. Conclusion 

Introduction 

This section is designed to provide guidance for managing both simple and 

complex civil cases. It includes actions that are required by rule along with 

factors to consider, alternative methods, and recommendations that experienced judges have found to be helpful. Not all of the recommendations 

given will be appropriate for every case, and judges should tailor the advice 

to the case at hand. Also, a district’s local rules may recommend or require a 

different practice or procedure, or even use different terminology. 

 Magistrate judges routinely handle many of the pretrial functions referred to below (see infra section II), and the term “judge” is meant to include both district and magistrate judges. 

I. The judge’s role 

The Civil Rules contemplate that the judge will be an active case manager. 

The rules apply across case types and sizes, but different cases have different pretrial needs. Some cases may require extensive discovery and motions 

practice, while others may involve little or no discovery or pretrial motions. 

The Civil Rules provide a flexible template to be tailored to the needs of each 

case. 

 The judge and the parties share case-management responsibility. The 

parties exercise first-level control and are the principal managers of their 

cases, but they do so under a schedule and other limits established by the 

judge. Many parties will not manage, or will manage in ways that are disproportionate to the needs of the case, or will otherwise frustrate the just, 

speedy, and inexpensive determination of the action. Judges may meet 

their own responsibility for the efficient resolution of cases both by guiding 

the parties to sound self-management and by intervening to impose effective management when necessary. 

 Active judicial case management is an essential part of the civil pretrial 

process. No party has the right to impose disproportionate or unnecessary 

costs on the court or the other side. Many parties and lawyers want and welcome active judicial case management, viewing it as key to controlling unnecessary cost and delay. 
Section 6.01: Civil case management 

190 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 Active case management does involve additional judge time at the start 

of the case, but it pays valuable dividends. It ensures that the case will proceed under an efficient but reasonable schedule, that time and expense will 

not be wasted on unnecessary discovery or motions practice, and that court 

and lawyer time will be devoted to the issues most important to the resolution of the case. When lawyers know the judge will be managing them, they 

are more likely to engage in sound self-management. Early attention to case 

management may also identify potential problems before they arise or address them before they worsen. Active case management promotes justice 

by focusing the parties and the court on what is truly in dispute and by reducing undue cost and delay. 

 There are three stages of pretrial case management: 

1. activities before the Rule 16 conference and/or order; 

2. holding a Rule 16 case-management conference and issuing a casemanagement order; and 

3. ongoing case management. 

II. Initial case management (pre-Rule 16 conference) 

The Rule 16 case-management conference between the lawyers and the 

judge is the primary opportunity for the judge to assess the pretrial needs of 

the case in time to craft an appropriately tailored case-management order. 

The effectiveness of the Rule 16 conference depends in large part on the information the parties provide. Rule 26(f) requires the parties to confer and 

prepare a discovery planning report to use in the Rule 16 conference with 

the court. The judge can take steps to promote the parties’ effective use of 

Rule 26(f). 

A. Rule 26(f) discovery planning conference and report 

1. Fed. R. Civ. P. 26(f) requires the parties to confer at least 21 days before the scheduling conference is to be held or a scheduling order is 

due under Rule 16(b), except in proceedings exempted from the Rule 

26(a)(1)(B) initial disclosures or when the court orders otherwise. 

2. The parties must, among other things, consider the nature and basis 

of their claims, discuss their expected discovery needs, and make a 

good-faith effort to agree on a proposed discovery plan, which they 

must submit to the court within 14 days. 

3. The Rule 26(f) conference and report serve two purposes. One is to 

have the parties discuss discovery before engaging in it, to prevent a 

“shoot first, ask questions later” approach. The second is to generate 

information for the court to consider at the Rule 16 conference in determining the reasonable pretrial needs of the case. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 191

B. Initial case-management orders (pre-Rule 16 conference) 

1. Too often, the lawyers’ Rule 26(f) conferences are perfunctory. As a 

result, the reports supply little useful information to the court. To 

improve the quality of the Rule 26(f) process, some judges issue initial case-management orders that spell out the topics the judge expects the parties to discuss at their Rule 26(f) conferences and address in their Rule 26(f) report. The order can also make clear that the 

judge will be asking about these topics at the Rule 16 casemanagement conference, creating an incentive for the lawyers to 

carry out their Rule 26(f) obligations responsibly. 

2. Consider issuing an order (or developing case-management guidelines) that structures the parties’ initial planning activities in order to 

facilitate an effective and efficient case-management conference 

with you later. The order or guidelines can be a standardized form issued by your staff when the Rule 16 case-management conference is 

scheduled. 

3. Consider reminding the parties that Rule 26(f) requires them to discuss issues relating to discovery of electronically stored information 

and advising them that you will ask about such issues at the Rule 

16(b) case-management conference. 

4. Consider reminding the parties that Rule 26(b) and (g) require their 

discovery activities to be proportional to the needs of the case and 

that you will ask about proportionality at the Rule 16(b) casemanagement conference. 

C. Supplementing the Rule 26(f) agenda for the parties 

1. Your order or guidelines can also direct the parties to discuss at their 

Rule 26(f) conference matters that go beyond those listed in Rule 

26(f), and to address those matters in their Rule 26(f) report or in a 

separate pre-Rule 16 conference submission. A district’s local rules 

may have specific requirements for the conference. 

2. Possible topics—for discussion or report or both—could be anything 

that will aid in your assessing and managing the case, including 

(a) the basis for federal-court subject-matter jurisdiction; 

(b) a brief description of the facts and issues in the case; 

(c) the status of any initial settlement discussions or a statement of 

whether the parties will engage in initial settlement discussions; 

and 

(d) any other case-management topics listed in Rule 16(c)(2). 

3. One factor to consider is that supplemental discussions or supplemental pre-Rule 16 conference reports will increase the parties’ upfront costs and burdens of litigation. While some judges effectively 
Section 6.01: Civil case management 

192 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

use supplemental submissions, other judges prefer to raise these 

topics at the Rule 16(b) conference if appropriate for the case. Each 

judge must determine how best to balance the costs and benefits of 

additional pre-Rule 16 conference requirements in different types of 

cases. 

III. Rule 16 case-management conferences and orders 

Before issuing a scheduling order, most judges find it advisable to hold a 

case-management conference with the lawyers—and sometimes the parties—to learn more about the case. The exchange with the lawyers, preferably face-to-face but by telephonic conference if circumstances require, is 

usually much more valuable for the court and the lawyers than just reviewing the parties’ report. The exchange provides the court with the information 

it needs to develop a scheduling order or case-management order that is tailored to the needs of the case. The Rule 26(f) report, even when well done, is 

typically no substitute for a live dialogue in which a judge asks questions, 

probes behind the parties’ representations, and fills in gaps. 

 A tailored case-management order can address several critical areas: 

1. the issues to be resolved and the best methods for resolving them in 

a timely and efficient manner; 

2. the scope of discovery, the best methods for the timely and costeffective exchange of information, and limits on the amount and 

type of discovery allowed in the case; 

3. procedures the parties must follow in the case, such as procedures for 

obtaining the court’s assistance in resolving discovery disputes; 

4. whether and when the parties might participate in processes designed to facilitate settlement; and 

5. a schedule for the topics addressed below. 

A. Rule 16(b) minimum requirements 

1. The district judge—or a magistrate judge when authorized by local 

rule—must issue a basic scheduling order in every civil case unless it 

is in a category of cases exempted by local rule. 

2. The basic scheduling order must set four deadlines: 

(a) to join new parties; 

(b) to amend the pleadings; 

(c) to complete discovery; and 

(d) to file motions. 

3. The judge must issue the scheduling order as soon as practicable, 

but in any event within 120 days after any defendant has been 

served or 90 days after any defendant has appeared, whichever occurs earlier. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 193

B. Rule 16(b) case-management orders; case-management conferences 

1. Scope. Most judges issue orders that go well beyond the minimum 

basic deadlines required by Rule 16(b). A Rule 16(b) order that provides extensive case management may be styled as a scheduling order; the label used is not controlling. 

2. Format. As noted earlier, most judges hold a Rule 16 conference with 

the lawyers, either face-to-face or by conference call, to learn about 

the case in order to issue a scheduling order/case-management order 

tailored to the case. In some cases, it will be clear in advance that 

such a conference is not necessary. In some categories of suits, the 

pretrial needs do not vary by case. In that event, the court can issue a 

scheduling order based on established practice as informed by the 

parties’ Rule 26(f) submissions. In general, however, it is better to 

hold a case-management conference, either in person or by telephone, even if the parties agree on deadlines and no motions are 

pending. The conference often reveals information and issues not 

apparent to the parties or the judge in the submissions. That information and those issues are often important in preparing a tailored 

case-management order. 

3. Length. The length of the conference will depend on the complexity 

of the case and the scope of the matters to be addressed. In many 

cases, 20 to 30 minutes should be adequate to explore the matters 

discussed below. More complicated cases will probably require more 

time. Cases that might seem simple and organized often turn out to 

have unforeseen complications and call for a longer conference to get 

them on a productive and efficient path. Allotting enough time for 

every conference maximizes the benefits of early case management. 

4. Judge participation. The judge who is conducting the pretrial activities 

should lead the conference. 

5. Party participation. Consider whether represented parties should be 

present at the case-management conference. Having the parties 

present can make it easier to identify the issues and can greatly add 

to a meaningful discussion of the litigation costs and the importance 

of limiting pretrial work to what is reasonable and proportional to the 

case. Note that some districts have a local rule that requires the parties to meet and discuss settlement or ADR before the pretrial conference. 

C. Addressing merits issues 

1. Narrowing the issues. The pleadings often fail to clearly identify what 

claims or defenses—or elements of claims or defenses—are genuinely in dispute. The case-management conference is an ideal time 
Section 6.01: Civil case management 

194 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

to probe the parties’ contentions to determine what issues actually 

need to be resolved. 

2. Initial disclosures. Because initial disclosures are required in most

cases, it is useful to ask counsel whether initial disclosures have been

exchanged and, if not, include that in the scheduling order.

3. Motions to dismiss. The case-management conference is an important

opportunity to address any pending motions to dismiss and determine whether the plaintiff intends to file an amended complaint that

might moot the need to resolve a pending motion. Consider discussing with counsel other ways of limiting dismissal motions and

whether it may be better to address the issues by summary judgment than by pleading challenges. For example, if a party wishes to

raise a statute of limitations issue, it may be better to address that in

a summary judgment motion after some discovery rather than by a

motion to dismiss.1

4. Staging motions. Explore whether there are any threshold issues that

should be resolved first. Where appropriate, phase the pretrial process (including discovery) so that critical or case-dispositive threshold

issues are resolved before the parties begin work on other issues.

5. Stipulations. Consider asking counsel whether they will stipulate to

facts that do not appear to be genuinely contested. Such stipulations

can streamline the issues to be resolved and can eliminate the need

for costly discovery on uncontested issues.

6. Experts. Explore the need for experts. Counsel often say they need

experts in cases or on issues but, on examination, it is apparent that

experts are neither needed nor appropriate. If experts are needed,

deadlines should be included in the case-management order for expert disclosures, reports, and discovery, and for the filing of motions

raising Daubert challenges under Rule 702 of the Federal Rules of

Evidence if those are expected. Such motions should not be deferred

until the final pretrial conference.

7. Class actions. If the case is styled as a class action, the conference is

often the best time to set dates for class certification motions and to

establish a process for any certification discovery that may be

needed. The conference provides an effective opportunity to explore

with counsel the relationship between, and possible overlap of, dis1. Consider establishing a process for the submission of premotion letters or for premotion conferences before a party can file a motion to dismiss or for summary judgment. 

Such motions can be expensive and time-consuming for both the parties and the court. Some 

judges have found that a premotion letter or conference requirement avoids or limits motions to dismiss or for summary judgment without the need for full briefing, or clarifies and 

focuses the issues for those motions that do proceed to full briefing. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 195

covery on class certification and on the merits, the limits that should 

be imposed on class-certification discovery, and staging discovery to 

decide the certification motion before proceeding to other merits discovery. 

D. Addressing discovery issues 

1. Managing discovery. Excessive discovery is one of the chief causes of 

undue cost and delay in the pretrial process. The case-management 

conference can help ensure that discovery proceeds fairly and efficiently in light of the needs of the case. Although you should ask the 

parties what discovery they need and how much time they will need 

to do it, do not rely solely on what the parties say in the Rule 26(f) discovery plan. Even if the parties agree, that does not guarantee that 

discovery will be proportional or proceed on a timely basis. 

 Remember that parties are not entitled to all discovery that is relevant to the claims and defenses. The judge has a duty to ensure that 

discovery is proportional to the needs of the case. Under Rule 

26(b)(2)(C), the court must limit discovery that would be “unreasonably cumulative or duplicative” or when “the burden or expense 

of the proposed discovery outweighs its likely benefit, considering 

the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the 

importance of the discovery in resolving the issues.” 

2. Proportionality. When needed, consider these techniques for imposing proportionality limits on discovery: 

(a) limiting the number of depositions (or their length), interrogatories, document requests, and/or requests for admission; 

(b) identifying whether discovery should initially focus on particular 

issues that are most important to resolving the case; 

(c) phasing discovery so that the parties initially focus on the sources 

of information that are most readily available and/or most likely 

to yield key information. Guide the parties to go after the “low 

hanging fruit” first; 

(d) limiting the number of custodians and sources of information to 

be searched; 

(e) delaying contention interrogatories until the end of the case, after discovery is substantially completed; and 

(f) otherwise modifying the type, amount, or timing of discovery to 

achieve proportionality. 

3. Evidence Rule 502 non-waiver order. Consider whether to enter a 

“non-waiver order” under Federal Rule of Evidence 502(d). This order, which does not require party agreement, precludes the assertion 

of a waiver claim based on production in the litigation. It avoids the 
Section 6.01: Civil case management 

196 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

need to litigate whether an inadvertent production was reasonable. 

By reducing the risk of waiver, the order removes one reason parties 

conduct exhaustive and expensive preproduction review. Many parties still are not aware of this opportunity for reducing the cost of discovery by reducing privilege review. 

4. Electronic discovery. Because electronic discovery is often a source of 

dispute, excessive costs, and delays, it can be important to ask 

whether the parties have considered any issues on discovery of electronically stored information (ESI). While the parties have a duty to 

discuss the discovery of ESI at their Rule 26(f) conference and include it in their Rule 26(f) report, experience shows that many lawyers do not. 

 If they have not already done so, see if the parties can reach agreement on basic electronic discovery issues, including the following: 

(a) the form in which ESI will be produced (i.e., native format, PDF, 

paper, etc.). The form of production can affect whether the material produced will include metadata and whether it will be computer searchable; 

(b) whether to limit discovery of ESI to particular sources or custodians, at least as an initial matter (see the “low hanging fruit” principle above); and 

(c) whether to seek agreement on search terms or methods before 

conducting computer searches to identify responsive materials. 

5. Preservation. Explore whether the parties have discussed the preservation of discoverable information, especially ESI. See if the parties 

can reach agreement on what will be preserved. If there are disputes, 

it is important to resolve them quickly to keep the case on track and 

avoid spoliation issues later. The principles of reasonableness and 

proportionality that guide discovery generally apply. 

6. Resolving discovery disputes. Consider requiring the parties to present 

discovery disputes informally (e.g., via a telephone conference or a 

short letter) before allowing the parties to file formal discovery motions and briefs. Many courts have found that they are able to resolve 

most discovery disputes using these less formal—and considerably 

less expensive and less time-consuming—methods. These courts do 

not allow counsel to file motions to compel or for sanctions before getting the judge on the phone (with a court reporter or a tape machine) 

to discuss the issue. Many courts find that they are able to resolve 

most discovery disputes over the telephone and that simply being 

available encourages the parties to resolve many disputes on their 

own. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 197

7. Cooperation. The discovery process is adversarial in the sense that 

the adversaries make choices about what information to seek and 

how to seek it. But that does not mean that lawyers cannot cooperate 

or that they must act in a hostile and contentious manner while conducting discovery. It is helpful to let the parties know that you expect 

them to be civil, to find ways to streamline the discovery process 

where possible, and to avoid needless cost and delay. 

E. Addressing settlement or other means of alternative dispute resolution 

1. Most courts will ask about the prospects of settlement and whether it 

would be useful for the parties to have an early settlement conference before the magistrate judge or another adjunct of the court. 

2. Some judges set a deadline in the scheduling order by which parties 

must engage in face-to-face settlement talks (whether assisted by a 

neutral or not), and require the parties to file a short status report on 

settlement talks after the deadline. This may prompt the parties to 

address settlement sooner than would otherwise occur. However, 

judges should be attuned to the parties’ views on settlement discussions. Sometimes counsel are prepared for early settlement discussion. But at other times, counsel will want to hold off discussing settlement until they have learned more about the case. 

3. Consider discussing whether the parties would be interested in pursuing other forms of alternative dispute resolution, such as early 

neutral evaluation, private mediation, nonbinding arbitration, or a 

summary jury trial. 

F. Trial date and joint pretrial order 

1. Most courts set a trial date in the scheduling order and try to adhere 

to it. Empirical data show that setting a firm trial date and sticking to 

it when possible is one of the best ways to ensure that the case moves 

forward without undue cost or delay. 

2. Consider whether a simpler and less costly joint pretrial order would 

suffice for the case. For example, for some cases, it is sufficient to 

have the parties submit exhibit and witness lists, proposed voir dire 

questions, and proposed jury instructions. 

IV. Ongoing case management 

Case management does not end when the case-management order is entered. Not all cases will require active ongoing case management, but many 

will. It is helpful to make clear up front that you stand prepared to re-engage 

when needed. 

A. Scheduling future conferences 

1. At the initial case-management conference, consider whether to 

schedule one or more follow-up conferences. These may include in-
Section 6.01: Civil case management 

198 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

terim pretrial conferences to manage discovery and resolve any disputes, schedule deadlines for potential summary judgment motions, 

or narrow the issues. These may also include a conference at the end 

of discovery to identify remaining issues, hear oral argument on motions if that would be helpful, and address any problems that presenting proof at trial may raise. 

2. In cases with heavy or contentious discovery, some judges schedule a 

standing discovery conference at set periods (e.g., once a month). 

This ensures that time is available to address any issues. Experience 

shows that the lawyers often call shortly before the regularly 

scheduled conference date to cancel it, as the impending conference 

date motivates them to resolve the issues on their own. 

3. In cases with extensive electronic discovery, the judge and the parties often adopt an iterative approach, in which the parties initially 

limit discovery to specific sources or custodians, deferring until later 

the decision whether to pursue further discovery. In cases that follow 

that approach, it is advisable to schedule a follow-up discovery management conference in advance, subject to cancellation if it is not 

needed. 

4. If you have deferred exploring settlement or other alternative dispute resolution activities until the parties have conducted discovery, 

it may be advisable to schedule a conference after the initial discovery to reassess the prospects of settlement or other resolution activity. 

B. Modifying the litigation schedule 

1. In some cases, it may be necessary to modify the schedule set in the 

initial case-management order. Under Rule 16(b)(4), any modification requires an order and a finding of good cause. 

2. Only the judge can modify the case-management order. The parties 

cannot extend the schedule on their own, even by agreement. It is 

common for the parties to seek a modification by stipulation, but the 

stipulation has no force of its own and should not be adopted automatically because of the need to determine whether there is good 

cause for the proposed modification. 

3. Modifying the case-management order requires a good-cause showing. The dominant factor is whether the existing schedule cannot 

reasonably be met despite the diligence of the party seeking extension. If that party has not been diligent in meeting the schedule, 

good cause to extend it may be lacking. 

4. Effective case management requires holding the parties and their 

lawyers to reasonable schedules. Parties and lawyers who disregard 

reasonable deadlines interfere with the “just, speedy, and inexpen-
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 199

sive determination of every action and proceeding.” Fed. R. Civ. P. 1. 

When judges adhere to the schedules they have imposed and enforce the good-cause requirement for modification, cases tend to be 

resolved more efficiently. 

C. Addressing issues promptly 

1. Addressing disputed issues promptly is the key to capitalizing on 

early case-management work and keeping the case moving. If the 

parties contact chambers with an issue, prompt attention—whether 

by conference call, a quickly scheduled case-management conference, or other means—can help keep the parties and the schedule on 

track. 

2. The way a dispute or motion is decided will often define or limit the 

pretrial activities to follow. For example, the way a motion for summary judgment is decided might dramatically narrow the issues in 

the case and therefore affect the scope of discovery. The way a discovery dispute is resolved also affects the cost, burden, and time of 

discovery. The prompt resolution of motions and disputes that intersect with the management of the case can be critical to reducing costs 

and delays. 

3. Rule 16(f) provides tools for promoting the purposes of Rule 16 and 

for enforcing the court’s case-management order. 

V. Final pretrial conference 

A. A valuable case-management tool 

Rule 16(e) states that a court may hold a final pretrial conference to “formulate a trial plan.” While not mandatory, a final pretrial conference is strongly 

encouraged. It is the judge’s primary way to ensure that the lawyers and the 

parties are prepared to try the case and that the trial starts and ends on time, 

and to avoid surprises. The final pretrial conference allows the judge, with 

the parties and counsel, to identify the legal issues that still need to be resolved. It also provides an opportunity to identify and address problems 

that otherwise might disrupt, delay, or unnecessarily complicate the trial. 

B. Scheduling the conference and setting the agenda 

1. Timing and participation. The purpose of the final pretrial conference 

is to plan the trial. Rule 16(e) provides that it must be held “as close to 

the start of trial as is reasonable.” Rule 16(e) also addresses who 

should be in attendance, stating that each party must be represented at the conference by at least one attorney who will conduct 

the trial, or by the party if unrepresented. Many judges require the 

attorneys who will take the lead at the trial to be present. 

2. Final pretrial conference orders. For a final pretrial conference to be effective, the lawyers and parties must prepare in advance. To facili-
Section 6.01: Civil case management 

200 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

tate that, many judges issue final pretrial conference orders that 

identify the specific steps the lawyers and parties must complete and 

the documents they must file before the conference. These steps 

and documents are designed to make the lawyers focus on what is actually needed to try the case. The final pretrial conference order does 

not have to be one-size-fits-all. The court can tailor or adapt the order 

to be sure that the steps the lawyers and parties are required to take 

are appropriate for the case, address the information needed for the 

trial, and do not unnecessarily increase the expense and burden of 

trial preparation. 

C. Requiring the parties to submit materials before the conference 

Most judges require the parties to prepare and submit materials in advance 

of the final pretrial conference, although specific practices vary both by district and by judge. Some districts have local rules, while others leave the 

matter to each judge. When local rules exist, they typically still allow for tailoring by the judge who will try the case. The two most important things to 

decide are what matters the judge wants the parties to address and the form 

the submissions should take. 

1. Matters to be addressed in the preconference submissions. The judge 

may ask the parties to address any matters that will help in planning 

the trial. The following items illustrate the types of matters judges often ask the parties to address in preconference submissions: 

(a) Factual issues. Require the parties to identify the factual issues to 

be resolved at trial and to provide a brief summary of the party’s 

position on each issue. This requires the parties to think through 

the trial ahead of time and enables the judge to discuss the nature and length of the trial and resolve issues that may simplify 

the trial. 

(b) Legal issues. Require the parties to identify disputed legal issues 

that must be resolved in connection with the trial. This prepares 

the judge to address those issues and, if possible, to decide them 

before trial. 

(c) Rule 26(a)(3)(A) disclosures. Rule 26(a)(3)(A) requires the parties 

to make pretrial disclosures on three topics. The parties must 

(i) identify their trial witnesses, separately identifying those 

they expect to present and those they may call if the need 

arises; 

(ii) designate any witness that will be presented by deposition 

transcript or videotape; and 

(iii) identify their documents and trial exhibits, separately identifying those they expect to offer and those they may offer if the 

need arises. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 201

 Rule 26(a)(3)(B) provides that these disclosures are due 30 days 

before trial unless the court sets a different due date. Many 

judges alter the deadline by ordering the parties to make their 

disclosures as part of the preconference submissions. 

(d) Marking exhibits. To ensure that the evidence is ready for trial and 

to minimize surprises, consider requiring the parties to exchange 

not only lists of exhibits, but actual copies of exhibits marked for 

introduction into evidence. 

(e) Objections. Rule 26(a)(3)(B) requires opposing parties to list objections to the use of a deposition under Rule 32(a), as well as any 

objection—together with the grounds for it—to the admissibility 

of trial exhibits. With the exception of objections under Federal 

Rules of Evidence 402 and 403, objections not so made are waived 

unless excused by the court for good cause. 

 These objections are due 14 days after the pretrial disclosures are 

made, unless the court sets a different deadline. Consider including in the final pretrial conference order instructions on how the 

parties should make any such objections. 

(f) Motions in limine. Many judges require parties to file and brief 

motions in limine before the final pretrial conference. The judge 

has discretion to place page or number limits on the motions in 

limine that are filed. Resolving motions in limine at the final pretrial conference defines the issues and evidence to be presented 

at trial. 

(g) Voir dire. Consider requiring the parties to submit proposed voir 

dire questions and a joint statement of the case to be read to the 

jury panel during voir dire. 

(h) Jury instructions. Consider requiring the parties to submit proposed preliminary and final jury instructions. 

(i) Verdict. Consider requiring the parties to submit proposed verdict 

forms or jury interrogatories. 

(j) Findings of fact and conclusions of law. In a bench trial, consider 

requiring the parties to submit proposed findings of fact and conclusions of law. 

 As noted earlier, there is no one-size-fits-all requirement. In cases 

that are simple or straightforward or in which the stakes are small, an 

elaborate joint proposed pretrial order may not be needed. In such 

cases, consider conferring with the lawyers about tailoring the preconference submissions, including any joint proposed pretrial order, 

so that they are limited to what the court and parties reasonably 

need for a fair and efficient trial. 
Section 6.01: Civil case management 

202 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

2. Form of the preconference submissions. Many judges require the parties to prepare and submit a joint proposed pretrial order that incorporates all of the matters they are required to address. Some judges 

prefer a shorter joint proposed pretrial order and additional matters, 

such as motions in limine, proposed voir dire questions, or proposed 

jury instructions, to be addressed separately, either in attachments 

or as freestanding submissions. 

 The deadlines for submission should allow time for the parties to 

prepare and submit any materials that respond to other submitted 

materials. For example, time is needed to see and review the other 

side’s exhibits and deposition designations before submitting objections to those exhibits and designations. 

D. Conducting the final pretrial conference 

1. Narrowing and refining issues; ruling on motions in limine. With the 

parties’ preconference submissions, the judge works with the parties 

to narrow and refine the issues for trial. Ruling on motions in limine 

may be an important part of this work. Narrowing and refining the issues and ruling in advance on as many issues as the record permits 

allow the court and parties to conduct the trial more efficiently and 

within the time allotted on the court’s calendar. 

2. Resolving other evidentiary issues

(a) The final pretrial conference provides an opportunity to preadmit 

exhibits if there will be no objections or if the court is able to resolve the objections and rule on admissibility under Federal Rule 

of Evidence 104. 

(b) The final pretrial conference can also be used to address evidence-related matters, such as which witnesses may be in the 

courtroom during the trial under Federal Rule of Evidence 615, 

the mode of questioning under Rule 611, and identifying exhibits 

suitable for summaries under Rule 1006. 

3. Other issues related to conducting the trial. The final pretrial conference can address any other issues regarding the conduct of the trial, 

including 

(a) the order of presenting evidence, particularly if multiple parties 

are involved; 

(b) possible bifurcation of the trial; 

(c) witness-scheduling issues, such as calling witnesses out of order; 

(d) how to present depositions or electronic evidence; 

(e) the need for interpreters; 

(f) special equipment needs; and 

(g) jury questions. 
Section 6.01: Civil case management 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 203

4. Firm trial dates and fixed trial times. If the court has not previously set 

a firm trial date, that date should be set at the final pretrial conference. The order scheduling the conference can advise attorneys to 

come with their calendars and with information on the availability of 

their witnesses and clients. Once the issues and evidence have been 

identified, the judge, in consultation with the parties, can determine 

the length of the trial. Consider entering an order limiting the time 

for the trial, such as by allotting a specific number of trial hours to 

each party. The adage that work expands to fill the time available 

applies fully to trials. Trials with established time limits tend to be 

more focused and more efficient. 

5. Educating parties on the court’s trial practices. Many judges use the 

final pretrial conference to educate lawyers and parties on the court’s 

trial practices, such as the extent of lawyer participation in jury voir 

dire; whether re-cross-examination generally is allowed; or whether 

jurors are permitted to take notes, to have copies of exhibits, or to 

submit questions to witnesses. It may also be helpful to educate the 

lawyers about the court’s expectations for the conduct of trial 

counsel. For example, the judge can educate the parties about proper 

practice for marking and presenting exhibits, for approaching 

witnesses, or for the use of courtroom equipment. Such an education 

can be particularly valuable for trials involving pro se litigants. 

6. Promoting settlement. If a final pretrial conference covers the kinds of 

issues identified above, parties leaving such a conference will never 

know more about their dispute, short of trial, than they do at that 

moment. The final pretrial conference may provide a valuable opportunity for settlement. Some judges encourage the parties to engage 

in settlement talks after the final pretrial conference and before trial. 

E. The final pretrial order 

1. Issuing the final pretrial order. After the final pretrial conference, the 

judge should issue a final pretrial order that reflects the decisions 

made during the conference. The final pretrial order should clearly 

identify the issues to be decided at trial, the witnesses to be called, 

the exhibits to be offered in evidence, and objections preserved for 

trial. The order should also reflect evidentiary or other rulings made 

by the judge for trial. A firm trial date should be fixed, as should the 

length of the trial, where appropriate. Judges may use a proposed final pretrial order submitted jointly by the parties, as modified by the 

judge, or an order written or dictated specifically for a particular case. 

2. Modifying the final pretrial order

(a) By adhering to the final pretrial order—that is, by holding the 

parties to the issues, evidence, objections, and schedule identified at the final pretrial conference—the judge can help avoid 
Section 6.01: Civil case management 

204 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

surprises and ensure that the trial will be completed in the time 

allotted. 

(b) Rule 16(e) provides that “[t]he court may modify the order issued 

after a final pretrial conference only to prevent manifest injustice.” This is a higher standard than the “good cause” test found 

elsewhere in Rule 16 and is intended to reflect the relative finality 

of the final pretrial order. It may be useful to restate this standard 

in the final pretrial order itself. 

VI. Conclusion 

Case management, beginning early, is essential to controlling costs and 

burdens of discovery and motions practice, particularly given the challenges 

of electronic discovery issues. Ongoing judicial management as the case develops, which ends in a careful and thorough final pretrial conference, will 

reduce delays and unnecessary costs and increase the likelihood that the 

case will be resolved on terms that reflect the strength and weaknesses of 

the merits, rather than the desire to avoid disproportionate discovery or the 

costs of an unnecessarily protracted trial. Effective case management is a 

critical part of achieving “just, speedy, and inexpensive” case resolutions. 

References 

Civil Litigation Management Manual (Judicial Conference of the United 

States, 2d ed. 2010) 

Federal Judicial Center’s Case Management Seminar Materials 

Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary 

(2011) 

Manual for Complex Litigation, Fourth (2004) 

Moore’s Federal Practice, vols. 3 and 6 

Wright, Miller & Kane, Federal Practice & Procedure, vol. 6A (2010) 

Wright, Miller & Marcus, Federal Practice & Procedure, vol. 8 (2010) 

Other FJC sources 

The Elements of Case Management: A Pocket Guide for Judges (2d ed. 2006) 

Managing Class Action Litigation: A Pocket Guide for Judges (3d ed. 2010) 

Managing Discovery of Electronic Information: A Pocket Guide for Judges 

(2d ed. 2012) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 205

6.02 Trial outline—civil 

1. Have the case called for trial. 

2. Jury is selected (see infra section 6.04: Jury selection—civil). 

3. Give preliminary instructions to the jury (see infra section 6.06: Preliminary jury instructions—civil case). 

4. Ascertain whether any party wishes to invoke the rule to exclude from 

the courtroom witnesses scheduled to testify in the case. 

5. Plaintiff’s counsel makes an opening statement. 

6. Defense counsel makes an opening statement (unless permitted to reserve). 

7. Plaintiff’s counsel calls witnesses for the plaintiff. 

8. Plaintiff rests. 

9. Hear appropriate motions. 

10. Defense counsel makes an opening statement if he or she has been 

permitted to reserve. 

11. Defense counsel calls witnesses for the defense. 

12. Defense rests. 

13. Counsel call rebuttal witnesses. 

14. Plaintiff rests on its entire case. 

15. Defense rests on its entire case. 

16. Consider appropriate motions. 

17. Out of the hearing of the jury, rule on counsel’s requests for instructions 

and inform counsel as to the substance of the court’s charge. Fed. R. Civ. 

P. 51(b). 

18. Counsel give closing arguments. 

19. Charge the jury (see infra section 6.07: General instructions to jury at end 

of civil case). Fed. R. Civ. P. 51. 

20. Rule on objections to the charge and make any additional appropriate 

charge. 

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

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

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

24. Recess court during the jury deliberations. 

25. Before responding to any communications from the jury, consult with 

counsel on the record (see infra section 6.07: General instructions to jury 

at end of civil case). 
Section 6.02: Trial outline—civil 

206 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

26. If the jury fails to arrive at a verdict before the conclusion of the first 

day’s deliberations, provide for the jurors’ overnight sequestration or 

permit them to separate after instructing them as to their conduct and 

fixing the time for their return to resume deliberations. Provide for safekeeping of exhibits. 

27. If the jurors report that they cannot agree on a verdict, determine by 

questioning whether they are hopelessly deadlocked. Do not inquire as 

to the numerical split of the jury. If you are convinced that the jury is 

hopelessly deadlocked, declare a mistrial. If you are not so convinced, direct the jurors to resume their deliberations. 

28. When the jury has agreed on a verdict, reconvene court and take the 

verdict (see infra section 6.08: Verdict—civil). 

29. Poll the jury on the request of either party or on the court’s own motion. 

Fed. R. Civ. P. 48(c). 

30. Thank and discharge the jury. 

31. Enter judgment upon the verdict. Fed. R. Civ. P. 58. 

32. Fix a time for post-trial motions. 

33. Adjourn or recess court. 

Other FJC sources 

Civil Litigation Management Manual 109–15 (Judicial Conference of the 

United States, 2d ed. 2010) 

Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial 

(2001) 

Manual for Complex Litigation, Fourth 131–66 (2004) 

William W Schwarzer and Alan Hirsch, The Elements of Case Management: A 

Pocket Guide for Judges (2d ed. 2006) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 207

6.03 Findings of fact and conclusions of law 

in civil cases and motions 

Fed. R. Civ. P. 41, 52, and 65(d) 

A. When required 

1. Fed. R. Civ. P. 52(a)(1) & (2) 

(a) In all cases tried without a jury or with an advisory jury, “the court 

must find the facts specially and state its conclusions of law separately.”

(b) In granting or refusing interlocutory injunctions, “the court must 

similarly state the findings and conclusions that support its action.” 

 Note that this is in addition to the requirements of Fed. R. Civ. P. 

65(d), which requires that “[e]very order granting an injunction and 

every restraining order shall set forth the reasons for its issuance; 

shall be specific in terms; shall describe in reasonable detail, and not 

by reference to the complaint or other document, the act or acts 

sought to be restrained.” 

2. Fed. R. Civ. P. 52(c)—Judgment on Partial Findings 

 “If a party has been fully heard on an issue during a nonjury trial and 

the court finds against the party on that issue, the court may enter 

judgment against the party . . . on that issue. . . . A judgment on partial findings must be supported by findings of fact and conclusions of 

law as required by Rule 52(a).” 

3. Fed. R. Civ. P. 41(a)(2)—Voluntary Dismissal 

 Plaintiff’s motion for voluntary dismissal may be granted “only by 

court order, on terms that the court considers proper.” 

B. When not required 

1. On any motions (other than those under Fed. R. Civ. P. 52(c)). 

(a) Fed. R. Civ. P. 52(a)(3) states that findings of fact and conclusions 

of law are “not required . . . when ruling on a motion under Rule 12 

or 56 or, unless these rules provide otherwise, on any other motion.” 

(b) Fed. R. Civ. P. 12 covers instances when defenses and objections 

to the pleadings are made and how they are presented—by 

pleading or motion. Fed. R. Civ. P. 12(c) pertains to a motion for 

judgment on the pleadings. Rule 12(d) concerns motions for 

judgment involving “matters outside the pleadings” and refers to 

Fed. R. Civ. P. 56, which covers summary judgment. 

(c) The exemption of motions, particularly those under Fed. R. Civ. P. 

12 and 56, from the requirement of making findings and conclu-
Section 6.03: Findings of fact and conclusions of law in civil motions 

208 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

sions means that most motions that are filed can be disposed of 

by simply stating “granted” or “denied.” 

 [Note: Some circuits prefer findings and conclusions on dispositive 

motions, particularly on motions for summary judgment, and may 

vacate and remand orders if the district court fails to provide any reasoning on the record for its decision. Judges should be aware that circuit law may require, or strongly urge, detailed findings on some motions.1

] 

C. Form and substance 

1. No particular format is required if an opinion or memorandum is 

filed. 

 “The findings and conclusions . . . may appear in an opinion or a 

memorandum of decision filed by the court.” Fed. R. Civ. P. 52(a)(1). 

A memorandum that contains only a list of findings and conclusions 

is adequate. The findings and conclusions need not be listed separately in an opinion. 

2. From the bench

 “The findings and conclusions may be stated on the record after the 

close of the evidence . . . .” Fed. R. Civ. P. 52(a)(1). It is always quicker 

and sometimes just as easy to make the findings and conclusions 

from the bench at the end of the case as it is to take the matter under 

submission. Be sure that they are put in the record. 

3. Requested findings and conclusions submitted by counsel 

 Specifically adopting or denying the requested findings and conclusions submitted by counsel is not necessary, as it is in some state 

courts. Some courts of appeals look with a jaundiced eye on district 

court findings or conclusions that follow counsel’s requests verbatim. 

4. Stipulations 

 Stipulations by counsel as to the facts are always helpful. Unlike requests, they should be used verbatim. Of course, counsel cannot 

stipulate as to the applicable law; they can only suggest. 

5. Length and style of opinion 

 The length and style of the opinion are left to the individual judge, 

but from the viewpoint of an appellate court, there are certain basic 

elements that should be included: 

 

 1. See, e.g., Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355 (4th Cir. 1994); Pasquino 

v. Prather, 13 F.3d 1049 (7th Cir. 1994); Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236, 

241 n.6 (5th Cir. 1993); Telectronics Pacing Sys. v. Ventritex, Inc., 982 F.2d 1520, 1526–27 

(Fed. Cir. 1992); United States v. Woods, 885 F.2d 352 (6th Cir. 1989); Clay v. Equifax, Inc., 762 

F.2d 952 (11th Cir. 1985). 
Section 6.03: Findings of fact and conclusions of law in civil motions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 209

(a) Jurisdiction. This is elementary, but sometimes overlooked. The 

statutory basis should be stated. 

(b) The issues. It is helpful if the issues are stated at the beginning of 

the opinion. 

(c) Credibility findings. These are the exclusive province of the district 

court. They should be clearly stated. If you do not believe a witness, say so. 

(d) The facts. If you have a transcript, refer to the pages that contain 

the evidence on which you rely. If there is no transcript and your 

opinion is based on your trial notes, say so. Some appellate courts 

forget that district court judges do not always have the benefit of 

a written record. 

(e) The law. There are three basic situations that you will face: 

(i) the law is well settled; 

(ii) the law is unsettled; or 

(iii) there is no applicable law—the case is one of first impression. 

 The first situation poses no problem; the second and third may 

create a fear-of-reversal syndrome. Do not worry about whether 

you may be reversed. No judge has been impeached for having 

been reversed. Get on with the opinion and do the best you can. 

The court of appeals or the Supreme Court is going to have the 

last word anyhow. 

 Be sure that someone checks the subsequent history of the cases. 

It is not a sin to be overruled except for relying on a case that was 

overruled. 

Other FJC sources 

Civil Litigation Management Manual 113–15 (Judicial Conference of the 

United States, 2d ed. 2010) 

Manual for Complex Litigation, Fourth 165 (2004) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 211

6.04 Jury selection—civil 

The Benchbook Committee recognizes that there is no uniform recommended procedure for selecting jurors to serve in criminal or civil cases and 

that trial judges will develop the patterns or procedures most appropriate for 

their districts and their courts. Section 6.05, infra, however, provides an outline of standard voir dire questions for civil cases. For a sample juror questionnaire, see Sample Forms 42 and 43 in Appendix A of the Civil Litigation 

Management Manual (Judicial Conference of the United States, 2d ed. 2010) 

(the forms are available only online at http://cwn.fjc.dcn/fjconline/home. 

nsf/pages/1245).

 The 1982 Federal Judicial Center publication Jury Selection Procedures in 

United States District Courts, by Gordon Bermant, contains a detailed discussion of several different methods of jury selection. Copies are available on 

request. See also the section on jury selection and composition (pp. 580–82) 

in Judge William W Schwarzer’s article “Reforming Jury Trials” in volume 132 

of Federal Rules Decisions (1990). 

 Judges should be aware of the cases, beginning with Batson v. Kentucky,

476 U.S. 79 (1986), that prohibit peremptory challenges based on race. In 

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court 

extended Batson to prohibit private litigants in civil cases from using peremptory challenges to exclude jurors on account of race. Peremptory strikes 

on the basis of gender are also prohibited. J.E.B. v. Alabama ex rel. T.B., 114 S. 

Ct. 1419 (1994). 

 The Supreme Court has left it to the trial courts to develop rules of procedure and evidence for implementing these decisions. It has, however, set 

out a three-step inquiry for resolving a Batson challenge (see Purkett v. Elem,

514 U.S. 765, 767–68 (1995): 

1. At the first step of the Batson inquiry, the burden is on the opponent 

of a peremptory challenge to make out a prima facie case of discrimination. A prima facie case may be shown where (1) the prospective 

juror is a member of a cognizable group, (2) the prosecutor used a 

peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by the 

juror’s membership in the cognizable group. Johnson v. California, 

545 U.S. 162, 170 (2005). The burden at this stage is low.1

2. If the opponent of the peremptory challenge satisfies the step one 

prima facie showing, the burden then shifts to the proponent of the 

 

 1. “[A] defendant satisfies the requirements of Batson’s first step by producing evidence 

sufficient to permit the trial judge to draw an inference that discrimination has occurred.” 

The defendant does not have to show that it was “more likely than not” that discrimination 

occurred. Johnson, 545 U.S. at 170. 
Section 6.04: Jury selection—civil 

212 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

strike, who must come forward with a nondiscriminatory explanation 

of the strike. 

3. If the court is satisfied with the neutral explanation offered, it must 

then proceed to the third step, to determine the ultimate question of 

intentional discrimination. Hernandez v. New York, 500 U.S. 352 

(1991). The opponent of the strike has the ultimate burden to show 

purposeful discrimination. The court may not rest solely upon the 

neutral explanation offered by the proponent of the strike. Instead, 

the court must undertake a sensitive inquiry into the circumstantial 

and direct evidence of intent, Batson, 476 U.S. at 93, and evaluate the 

“persuasiveness of the justification” offered by the proponent of the 

strike. Purkett, 514 U.S. at 768. One method of undertaking such inquiry is to make a “side-by-side comparison” of the reasons given for 

striking panelists vis-à-vis those who were allowed to serve. Miller-El 

v. Dretke, 545 U.S. 231, 241 (2005). 

The Benchbook Committee suggests that judges 

• conduct the above inquiry on the record but outside of the venire’s 

hearing, to avoid “tainting” the venire by discussions of race, gender, 

or other characteristics of potential jurors; and 

• use a method of jury selection which requires litigants to exercise 

challenges at sidebar or otherwise outside of the venire’s hearing and 

in which no venire members are dismissed until all of the challenges 

have been exercised. See Jury Selection Procedures in United States 

District Courts, supra.

These procedures should ensure that prospective jurors are never aware of 

Batson discussions or arguments about challenges, and therefore can draw 

no adverse inferences by being temporarily dismissed from the venire and 

then recalled. 

Other FJC sources 

Civil Litigation Management Manual 106–07 (Judicial Conference of the 

United States, 2d ed. 2010) 

Manual for Complex Litigation, Fourth 150–52 (2004) 

For a summary of procedures that courts developed for criminal cases in the 

first two years after Batson, see Bench Comment, 1988, nos. 3 & 4 

For a discussion of voir dire practices in light of Batson, see Chambers to 

Chambers, vol. 5, no. 2 (1987) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 213

6.05 Standard voir dire questions—civil 

Fed. R. Civ. P. 47(a) provides that the court “may permit the parties or their 

attorneys to examine prospective jurors or may itself do so.” The following 

outline for an initial in-depth voir dire examination of the entire panel by the 

court assumes that 

1. if there are affirmative responses to any questions, follow-up questions will be addressed to the juror(s) (at sidebar, if such questions 

concern private or potentially embarrassing matters); and 

2. the court and counsel have been furnished with the name, address, 

age, and occupation of each prospective juror. 

 If the court conducts the entire examination, it should require counsel to 

submit proposed voir dire questions before trial to permit the court to incorporate additional questions at the appropriate places in this outline. 

Outline 

A. Have the jury panel sworn. 

B. Explain to the jury panel that the purpose of the voir dire examination is 

1. to enable the court to determine whether any prospective juror 

should be excused for cause; and 

2. to enable counsel for the parties to exercise their individual judgment with respect to peremptory challenges—that is, challenges for 

which counsel need not give a reason. 

C. Indicate that the case is expected to take ___ days to try, and ask if this 

fact presents a special problem to any member of the panel. 

D. Briefly describe the case that is about to be tried. 

E. Ask if any member of the panel has heard or read anything about the 

case. 

F. Introduce counsel (or have counsel introduce themselves) and ask if any 

member of the panel or his or her immediate family knows or has had 

any business dealings with any of the counsel or their law firms. 

G. Introduce the parties (or have counsel introduce the parties) and ask if 

any member of the panel or his or her immediate family 

1. is personally acquainted with, 

2. is related to, 

3. has had business dealings with, 

4. is currently or was formerly employed by, 

5. has had any other relationship or business connection with, or 

6. is a stockholder of any party in the case. 
Section 6.05: Standard voir dire questions—civil 

214 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

H. Introduce or identify by name, address, and occupation all prospective 

witnesses (or have counsel do so). Ask if any member of the panel knows 

any of the prospective witnesses. 

I. Ask prospective jurors: 

1. Have you ever served as a juror in a criminal or civil case or as a 

member of a grand jury in either a federal or state court? 

2. Have you or has anyone in your immediate family ever participated in a lawsuit as a party or in any other capacity? 

3. If you are selected to sit on this case, will you be able to render a 

verdict solely on the evidence presented at the trial and in the 

context of the law as I will give it to you in my instructions, 

disregarding any other ideas, notions, or beliefs about the law 

that you may have encountered in reaching your verdict? 

4. Is there any member of the panel who has any special disability 

or problem that would make serving as a member of the jury difficult or impossible? 

5. [At this point, if the court is conducting the entire examination, 

ask those questions submitted by counsel that you feel should be 

propounded. If the questions elicit affirmative responses, ask 

appropriate follow-up questions.] 

6. Having heard the questions put to you by the court, does any 

other reason suggest itself to you as to why you could not sit on 

this jury and render a fair verdict based on the evidence presented to you and in the context of the court’s instructions to 

you on the law? 

J. 1. If appropriate, permit counsel to conduct additional direct voir dire 

examination, subject to such time and subject matter limitations as 

the court deems proper; or 

2. Direct counsel to come to the bench, and consult with them as to 

whether any additional questions should have been asked or 

whether any were overlooked. 

Other FJC sources 

Gordon Bermant, Jury Selection Procedures in United States District Courts 

(1982) 

Civil Litigation Management Manual 106–07 (Judicial Conference of the 

United States 2d ed. 2010) 

Civil Litigation Management Manual (Judicial Conference of the United 

States, 2d ed. 2010), Sample Form 46 in Appendix A. 

Manual for Complex Litigation, Fourth 151–52 (2004) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 215

6.06 Preliminary jury instructions— 

civil case 

These suggested instructions are designed to be given following the swearing of the jury. They are general and may require modification in light of the 

nature of the particular case. They are intended to give the jury, briefly and 

in understandable language, information to make the trial more meaningful. Other instructions, such as explanations of depositions, interrogatories, 

and the hearsay rule, may be given at appropriate points during the trial. 

Preliminary instructions 

Members of the jury: Now that you have been sworn, I will give you some 

preliminary instructions to guide you in your participation in the trial. 

Duty of the jury 

It will be your duty to find from the evidence what the facts are. You and 

you alone will be the judges of the facts. You will then have to apply to 

those facts the law as the court will give it to you. You must follow that law 

whether you agree with it or not. 

 Nothing the court may say or do during the course of the trial is intended to indicate, or should be taken by you as indicating, what your verdict should be. 

Evidence 

The evidence from which you will find the facts will consist of the testimony 

of witnesses, documents and other things received into the record as exhibits, and any facts that the lawyers agree to or stipulate to or that the court 

may instruct you to find. 

 Certain things are not evidence and must not be considered by you. I will 

list them for you now. 

1. Statements, arguments, and questions by lawyers are not evidence. 

2. Objections to questions are not evidence. Lawyers have an obligation 

to their clients to make objections when they believe evidence being 

offered is improper under the rules of evidence. You should not be 

influenced by the objection or by the court’s ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence 

is received for a limited purpose only, you must follow that instruction. 

3. Testimony that the court has excluded or told you to disregard is not 

evidence and must not be considered. 
Section 6.06: Preliminary jury instructions—civil case 

216 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

4. Anything you may have seen or heard outside the courtroom is not 

evidence and must be disregarded. You are to decide the case solely 

on the evidence presented here in the courtroom. 

 There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that 

other facts exist. I will give you further instructions on these as well as other 

matters at the end of the case, but keep in mind that you may consider both 

kinds of evidence. 

 It will be up to you to decide which witnesses to believe, which witnesses 

not to believe, and how much of any witness’s testimony to accept or reject. 

I will give you some guidelines for determining the credibility of witnesses at 

the end of the case. 

Burden of proof 

This is a civil case. The plaintiff has the burden of proving his [her] case by 

what is called the preponderance of the evidence. That means the plaintiff 

has to produce evidence which, considered in the light of all the facts, leads 

you to believe that what the plaintiff claims is more likely true than not. To 

put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the 

scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant. 

 Those of you who have sat on criminal cases will have heard of proof 

beyond a reasonable doubt. That requirement does not apply to a civil case; 

therefore, you should put it out of your mind. 

Summary of applicable law 

[Note: A summary of the elements may not be appropriate in some cases.] 

 In this case, the plaintiff claims that ___________; the defendant claims 

that ___________. I will give you detailed instructions on the law at the end 

of the case, and those instructions will control your deliberations and decision. But in order to help you follow the evidence, I will now give you a brief 

summary of the elements which the plaintiff must prove to make his [her] 

case: [here summarize the elements]. 

Conduct of the jury 

Now, a few words about your conduct as jurors. 

 You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during 

the trial you must not conduct any independent research about this case, 

the matters in the case, and the individuals or corporations involved in the 

case. In other words, you should not consult dictionaries or reference mate-
Section 6.06: Preliminary jury instructions—civil case 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 217

rials, search the Internet, websites, or blogs, or use any other electronic 

tools to obtain information about this case or to help you decide the case. 

Please do not try to find out information from any source outside the confines of this courtroom. 

 Until you retire to deliberate, you may not discuss this case with anyone, 

even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case 

with anyone else until you have returned a verdict and the case is at an end. 

 I know that many of you use cell phones, Blackberries, the Internet, and 

other tools of technology. You also must not talk to anyone at any time 

about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not 

communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or 

website, including Facebook, Google+, My Space, LinkedIn, or YouTube. 

You may not use any similar technology of social media, even if I have not 

specifically mentioned it here. I expect you will inform me as soon as you 

become aware of another juror’s violation of these instructions.1

 A juror 

who violates these restrictions jeopardizes the fairness of these proceedings, 

and a mistrial could result, which would require the entire trial process to 

start over. 

 Finally, do not form any opinion until all the evidence is in. Keep an 

open mind until you start your deliberations at the end of the case. 

 I hope that for all of you this case is interesting and noteworthy. 

[If the court decides to allow note taking, add:] 

 If you want to take notes during the course of the trial, you may do so. 

However, it is difficult to take detailed notes and pay attention to what the 

witnesses are saying at the same time. If you do take notes, be sure that 

your note taking does not interfere with your listening to and considering all 

of the evidence. Also, if you do take notes, do not discuss them with anyone 

before you begin your deliberations. Do not take your notes with you at the 

end of the day—be sure to leave them in the jury room. 

 

 1. Taken from “Proposed Model Jury Instructions: The Use of Electronic Technology to 

Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference 

Committee on Court Administration and Case Management (June 2012). See Memorandum, 

“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Administration and Case Management to all United States District Court Judges (Aug. 6, 2012), 

available at http://jnet.ao.dcn/img/assets/7324/DIR12-074.pdf. See also “Strategies for Preventing Jurors’ Use of Social Media During Trials and Deliberations,” in Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee 

on Court Administration and Case Management 5–10 (Federal Judicial Center Nov. 22, 

2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/DunnJuror.pdf/$file/DunnJuror. 

pdf. 
Section 6.06: Preliminary jury instructions—civil case 

218 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 If you choose not to take notes, remember that it is your own individual 

responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of 

all members of the jury; you all must remember the evidence in this case.2

Course of the trial 

The trial will now begin. First, each side may make an opening statement. 

An opening statement is neither evidence nor argument; it is an outline of 

what that party intends to prove, offered to help you follow the evidence. 

 Next, the plaintiff will present his [her] witnesses, and the defendant 

may cross-examine them. Then the defendant will present his [her] witnesses, and the plaintiff may cross-examine them. 

 After all the evidence is in, the parties will present their closing arguments to summarize and interpret the evidence for you, and the court will 

give you instructions on the law. 

 [Note: Some judges may wish to give some instructions before closing arguments. See Fed. R. Civ. P. 51(b)(3).] 

 You will then retire to deliberate on your verdict. 

Other FJC sources 

Civil Litigation Management Manual 111–12 & Forms 44, 46 (Judicial Conference of the United States, 2d ed. 2010) 

Manual for Complex Litigation, Fourth 154–56 (2004) 

 

 2. For another sample instruction on note taking, see Civil Litigation Management 

Manual at Appendix A, Form 44 (Judicial Conference of the United States, 2d ed. 2010). 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 219

6.07 General instructions to jury at end of 

civil case 

Introductory note 

Fed. R. Civ. P. 51(b) outlines the procedure for the submission and consideration of requests by the parties for specific jury instructions. It requires 

1. that the court inform counsel before closing arguments of its proposed instructions and its proposed action upon the instructions requested by counsel; and 

2. that the court give counsel adequate opportunity outside the hearing of the jury to object to the court’s instructions. 

 There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge conference with counsel during trial. At that conference, the tendered instructions are discussed 

and are accepted, rejected, or modified by the court. 

 Other courts, without holding a charge conference, prepare a set of proposed instructions from those tendered by counsel. These courts then give a 

copy of the proposed instructions to all counsel and permit counsel to take 

exception to the instructions. Thereafter, the court may revise its instructions if convinced by counsel in their objections that the instructions should 

be modified. 

 Still other courts require counsel to confer during trial and to agree, to the 

extent that they can, on the instructions that should be given. The court 

then considers only those instructions upon which the parties cannot agree. 

 The court may, of course, give an instruction to the jury that neither 

party has tendered. 

 While the court is free to ignore tendered instructions and to instruct the 

jury sua sponte, the usual practice is for the court to formulate the final instructions with the assistance of counsel and principally from the instructions counsel tendered. 

 Local practice varies as to whether a written copy of the instructions is 

given to the jury for use during its deliberations. Many courts always give the 

jury a written copy of the instructions. Some courts have the instructions recorded as they are given in court and permit the jury to play them back in 

the jury room. Some courts do neither but will repeat some or all of the instructions in response to a request from the jury. 

Outline of instructions 

Instructions delivered at the end of a case consist of three parts: Instructions 

on general rules that define and control the jury’s duties; statement of rules 

of law that the jury must apply; and rules and guidelines for jury deliberation and return of verdict. 
Section 6.07: General instructions to jury at end of civil case 

220 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

A. General rules 

1. Outline the duty of the jury 

(a) to find facts from admitted evidence; 

(b) to apply law as given by the court to the facts as found by the jury; 

and 

(c) to decide the case on the evidence and the law regardless of personal opinions and without bias, prejudice, or sympathy. 

2. Discuss the burden of proof in civil trials and explain how it differs 

from the burden of proof in criminal trials. 

3. Indicate the evidence to be considered: 

(a) sworn testimony of witnesses; 

(b) exhibits; 

(c) stipulations; and 

(d) facts judicially noticed. 

4. Indicate what is not evidence: 

(a) arguments and statements of counsel; 

(b) questions to witnesses; 

(c) evidence excluded by rulings of the court. 

B. Delineate with precision and with specific consideration of the law of 

your circuit each claim and defense of the parties that is to be submitted 

to the jury for their consideration. 

C. Jury procedure 

1. Selection and duty of the foreperson. 

2. Process of jury deliberation: 

(a) rational discussion of the evidence by all jurors for the purpose of 

reaching a unanimous verdict; 

(b) each juror is to decide the case for himself or herself in the context 

of the evidence and the law, with proper consideration of other 

jurors’ views; and 

(c) jurors may reconsider their views if persuaded by rational discussion but not solely for the sake of reaching a unanimous verdict. 

3. Absent a stipulation, the verdict must be unanimous on the issue 

submitted (Fed. R. Civ. P. 48). 

4. Explain the verdict form, if used.1

5. Jury communications with the court during deliberations must be in 

writing and signed by the foreperson. 

 

 1. Consider whether to use a special verdict (Fed. R. Civ. P. 49(a)). It can be a useful device to reduce the risk of having to retry the entire case. 
Section 6.07: General instructions to jury at end of civil case 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 221

6. The jury must not disclose how it stands numerically or otherwise on 

the issues submitted. 

7. Consider giving the jury the following instruction: 

 During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You 

may not use any electronic device or media, such as a telephone, cell 

phone, smart phone, iPhone, Blackberry, or computer; the Internet, 

any Internet service, or any text or instant messaging service; or any 

Internet chat room, blog, or website, such as Facebook, MySpace, 

LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case 

until I accept your verdict. In other words, you cannot talk to anyone 

on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in 

the jury room with your fellow jurors during deliberations. I expect 

you will inform me as soon as you become aware of another juror’s 

violation of these instructions. 

 You may not use these electronic means to investigate or 

communicate about the case because it is important that you decide 

this case based solely on the evidence presented in this courtroom. 

Information on the Internet or available through social media might 

be wrong, incomplete, or inaccurate. You are only permitted to 

discuss the case with your fellow jurors during deliberations because 

they have seen and heard the same evidence you have. In our judicial 

system, it is important that you are not influenced by anything or 

anyone outside of this courtroom. Otherwise, your decision may be 

based on information known only by you and not your fellow jurors 

or the parties in the case. This would unfairly and adversely impact 

the judicial process.2

 If a juror violates these restrictions, it could 

cause a mistrial, which would require the entire trial process to start 

over. 

 

 2. Taken from “Proposed Model Jury Instructions: The Use of Electronic Technology to 

Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference 

Committee on Court Administration and Case Management (June 2012). See Memorandum, 

“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Administration and Case Management to all United States District Court Judges (Aug. 6, 2012), 

available at http://jnet.ao.dcn/img/assets/7324/DIR12-074.pdf. See also “Strategies for Preventing Jurors’ Use of Social Media During Trials and Deliberations,” in Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee 

on Court Administration and Case Management 5–10 (Federal Judicial Center Nov. 22, 

2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/DunnJuror.pdf/$file/DunnJuror. 

pdf. 
Section 6.07: General instructions to jury at end of civil case 

222 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

D. Consider providing the jury with a written copy or transcript of the jury 

instructions. 

Other FJC sources 

Civil Litigation Management Manual 111–12 & Forms 44, 47 (Judicial Conference of the United States, 2d ed. 2010) 

Manual for Complex Litigation, Fourth 156–59 (2004) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 223

6.08 Verdict—civil 

A. Reception of an unsealed verdict 

1. Upon announcement by the jury that it has reached a verdict, have 

all interested parties convene in open court to receive the verdict. 

2. When court is convened, announce that the jury is ready to return its 

verdict(s), and instruct the deputy marshal (or bailiff) to have the jurors enter and assume their seats in the jury box. 

3. If not already known, inquire of the jury who speaks as its foreperson. 

4. Ask the foreperson if the jury has unanimously agreed upon its verdict(s). [Note: If the response is anything other than an unqualified 

yes, the jury should be returned without further inquiry to continue 

its deliberations.] 

5. Instruct the foreperson to hand the verdict form(s) to the clerk to be 

delivered to you for inspection before publication.

6. Inspect the verdict(s) to ensure regularity of form. [Note: If the verdict form(s) is (are) not properly completed, take appropriate corrective action before publication.] 

7. Explain to the jurors that their verdict(s) will now be “published”—

that is, read aloud in open court. 

8. Instruct the jury to pay close attention as the verdict(s) is (are) published; and explain that, following publication, the jury may be 

“polled”—that each juror may be asked, individually, whether the 

verdict(s) as published constituted his or her individual verdict(s) in 

all respects. 

9. Publish the verdict(s) by reading it (them) aloud (or by having the 

clerk do so). 

10. Upon request of any party, or on your own motion, poll the jury by 

asking (or by having the clerk ask) each individual juror, by name or 

number, whether the verdict(s) as published constituted his or her 

individual verdict(s) in all respects. 

11. If polling verifies unanimity, direct the clerk to file and record the 

verdict(s), and discharge the jurors with appropriate instructions 

concerning their future service, if any. 

12. If polling results in any doubt as to unanimity, or if there are inconsistent answers to a special verdict, make no further inquiry and have 

no further discussions with the jury; rather, confer privately with 

counsel and determine whether the jury should be returned for further deliberations or a mistrial should be declared. 
Section 6.08: Verdict—civil 

224 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

B. Reception of a sealed verdict 

[Note: On some occasions an indispensable party may not be available to 

receive a verdict when the jury reaches agreement. In such cases a 

sealed verdict may be delivered to the clerk for subsequent “reception” 

and publication in open court when the jury, the judge, and all necessary 

parties are present.] 

1. Upon announcement by the jury that it has reached a verdict, have 

all interested and available parties convene in open court and on the 

record. 

2. When court is thus convened, announce that the jury is ready to return its verdict(s), and explain that a sealed verdict will be taken in 

accordance with the following procedure: 

(a) Instruct the deputy marshal (or bailiff) to usher the jurors into the 

courtroom to assume their seats in the jury box. 

(b) If not already known, inquire of the jury who speaks as its foreperson. 

(c) Ask the foreperson if the jury has unanimously agreed on its verdict. [Note: If the response is anything other than an unqualified 

yes, the jury should be returned without further inquiry to continue its deliberations.] 

(d) Explain to the jury that a sealed verdict will be taken, and further explain why that procedure has become necessary in the 

case. 

(e) Poll the jury on the record. 

(f) Direct the clerk to hand a suitable envelope to the foreperson. 

Instruct the foreperson to place the verdict form(s) in the envelope, to seal the envelope, and to hand it to the clerk for 

safekeeping. 

(g) Recess the proceedings, instructing the jury and all interested 

parties to return at a fixed time for the opening and formal reception of the verdict. Instruct that, in the interim, no member 

of the jury should have any conversation with any other person, including any other juror, concerning the verdict or any other 

aspect of the case. 

(h) When court is again convened for reception of the verdict, have 

the clerk hand the sealed envelope to the jury foreperson. 

(i) Instruct the foreperson to open the envelope and verify that the 

contents consist of the jury’s verdict form(s) without modification 

or alteration of any kind. 

(j) Follow the steps or procedures outlined in paragraphs A.5 

through A.12 supra. 

NOTE

In the event the 

jury will not be 

present at the 

opening of the 

verdict, it is recommended that 

each juror sign the 

verdict form(s).
Section 6.08: Verdict—civil 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 225

Other sources on polling the jury 

Federal Trial Handbook, Civil, § 79:12 (4th ed.) (2012) 

Moore’s Federal Practice ¶ 49.07 (3d ed.) (1997) 

Wright & Miller, Federal Practice and Procedure, Civil, § 2504 (1998) 

Humphries v. District of Columbia, 174 U.S. 190 (1899) 

Castleberry v. NRM Corp., 470 F.2d 1113 (10th Cir. 1972) 

Other FJC sources 

Manual for Complex Litigation, Fourth 160–63 (2004) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 227

6.09 Referrals to magistrate judges 

(civil matters) 

Fed. R. Civ. P. 72 and 73; 28 U.S.C. § 636

Listed below are duties in civil matters that may be referred to magistrate 

judges. Most districts have local rules or standing orders governing referrals 

to magistrate judges. 

 For a more comprehensive listing of the duties magistrate judges may 

perform, see the Inventory of United States Magistrate Judge Duties (December 1999).1

 This inventory is available on request from the Magistrate Judges 

Division of the Administrative Office of the U.S. Courts and also appears in 

Chapter 3, “Jurisdiction,” of the Legal Manual for United States Magistrate 

Judges, published by the Administrative Office. 

A magistrate judge may conduct: 

1. All phases of a civil case, with the written consent of the parties.2

 28 

U.S.C. § 636(c)(1); Fed. R. Civ. P. 73. Appeal is to the court of appeals, 

as in any other civil case. 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c). 

See generally supra section 6.02: Trial outline—civil.3

 

2. Pretrial matters: 

(a) A magistrate judge may conduct a Rule 16 pretrial conference and 

hear and determine nondispositive pretrial matters, such as discovery disputes and requests for bifurcation or consolidation. 

Upon timely objection by a party, a district court shall consider 

such objections and modify or set aside any portion of the magis-

 

 1. The Inventory was updated online in July 2009 and is available at http://jnet.ao.dcn/ 

Judges/Magistrate_Judges/Authority/Inventory.html. The Administrative Office also provides an online web page that summarizes more recent decisions and articles relating to 

the duties and authority of magistrate judges at http://jnet.ao.dcn/Judges/Magistrate_ 

Judges/Authority/Decisions. html. 

 2. The Supreme Court recently held that lack of written or express consent might not 

deprive the magistrate judge of jurisdiction—implied consent was sufficient in a case in 

which, after being informed of the right to trial before a district judge, a party voluntarily 

appeared before a magistrate judge and tried the case to conclusion. Roell v. Withrow, 538 

U.S. 580, 586–91 (2003) (“although the specific referral procedures in 28 U.S.C. § 636(c)(2) 

and Federal Rule of Civil Procedure 73(b) are by no means just advisory, the text and structure of the section as a whole suggest that a defect in the referral to a full-time magistrate 

judge under § 636(c)(2) does not eliminate that magistrate judge’s ‘civil jurisdiction’ under 

§ 636(c)(1) so long as the parties have in fact voluntarily consented”). However, the Benchbook Committee believes that Roell is an unusual case and strongly recommends that written consent be obtained before proceeding. 

 3. For an illustrative consent form and order of reference to a magistrate judge, see 

Civil Litigation Management Manual (Judicial Conference of the United States, 2d ed. 2010), 

Sample Forms 50–53.
Section 6.09: Referrals to magistrate judges (civil matters) 

228 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

trate judge’s order found to be clearly erroneous or contrary to 

law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). 

(b) A magistrate judge may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as summary judgment motions. A 

district court must make a de novo determination of those portions of proposed findings and recommendations to which the 

parties object. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

 See generally supra section 6.02: Trial outline—civil. 

3. Voir dire, if the parties consent. 28 U.S.C. § 636(c)(1); Stockler v. Garratt, 974 F.2d 730 (6th Cir. 1992); Olympia Hotels Corp. v. Johnson Wax 

Development Corp., 908 F.2d 1363 (7th Cir. 1990). See supra section 

6.05: Standard voir dire questions—civil. 

4. “[A]dditional duties [that] are not inconsistent with the Constitution 

and laws of the United States.” 28 U.S.C. § 636(b)(3). For examples of 

additional duties and case law on § 636(b)(3), see the Inventory of 

United States Magistrate Judge Duties at 112–40.

Other FJC sources 

Civil Litigation Management Manual 150–54 (Judicial Conference of the 

United States, 2d ed. 2010) 

Manual for Complex Litigation, Fourth 117 (2004) 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 229

7.01 Contempt—criminal 

Fed. R. Crim. P. 42; 18 U.S.C. § 401

Background 

The purpose, procedure, and penalty for criminal contempt differ from 

those for civil contempt. It is essential that the trial judge make clear on the 

record whether the proceeding is for civil or criminal contempt. 

 The purpose of criminal contempt is to punish a person for a past act of 

contempt. Criminal contempt has the characteristics of a crime, and the contemnor is cloaked with the safeguards of one accused of a crime. The purpose of civil contempt is to compel someone to do or not do a certain act. 

 Case law makes clear that the contempt power is one to be exercised with 

the greatest restraint and that, in exercising that power, a court should exert 

only the power needed to achieve the desired end. 

Controlling statute and rule 

The controlling statute for criminal contempt is 18 U.S.C. § 401. It 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 other, 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 applicable rule of procedure is Fed. R. Crim. P. 42. That rule, as 

amended December 1, 2002, provides as follows: 

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The court must give the person notice in open court, in an 

order to show cause, or in an arrest order. The notice must: 

(A) state the time and place of the trial; 

(B) allow the defendant a reasonable time to prepare a defense; 

and 

(C) state the essential facts constituting the charged criminal contempt and describe it as such. 

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless 

the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the attempt. 
Section 7.01: Contempt—criminal 

230 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(3) Trial and Disposition. A person being prosecuted for criminal 

contempt is entitled to a jury trial in any case in which federal law 

so provides and must be released or detained as Rule 46 provides. 

If the criminal contempt involves disrespect toward or criticism of 

a judge, that judge is disqualified from presiding at the contempt 

trial or hearing unless the defendant consents. Upon a finding or 

verdict of guilty, the court must impose the punishment. 

(b) Summary Disposition. Notwithstanding any other provision of these 

rules, the court (other than a magistrate judge) may summarily punish 

a person who commits criminal contempt in its presence if the judge 

saw or heard the contemptuous conduct and so certifies; a magistrate 

judge may summarily punish a person as provided in 28 U.S.C. 

§ 636(e). The contempt order must recite the facts, be signed by the 

judge, and be filed with the clerk. 

Criminal contempt procedures 

Fed. R. Crim. P. 42 prescribes two different procedures, depending on 

whether the judge personally observes the contemptuous conduct and 

whether immediate action is required. 

Procedure when contemptuous conduct is personally observed by the 

judge and immediate action is required 

When you see or hear contemptuous conduct, you may but are not compelled to proceed under Fed. R. Crim. P. 42(b). 

 This summary procedure is appropriate only when immediate action is 

needed. It is reserved for conduct that actually disrupts or obstructs court 

proceedings and for situations in which immediate action is necessary to restore the court’s authority. The conduct must be more flagrant than mere 

disrespect to the judge or an affront to the judge’s sense of dignity.1

 If the conduct (such as shouting in the courtroom) does interfere with 

court proceedings, proceed as follows: 

1. First, warn the person that if a repetition occurs, he or she may be removed from the courtroom or may be found in criminal contempt. 

2. If marshals are not already in the courtroom, summon them, so that 

they will be present if the disruptive conduct is repeated. 

3. If the offender repeats the disruptive conduct, order him or her removed from the courtroom. 

4. If the conduct is so disruptive that removing the offender is inadequate to reestablish the authority and dignity of the court, follow the 

Fed. R. Crim. P. 42(b) procedure. [Note: In summary proceedings un-

 

 1. Summary procedure may also be appropriate when an already imprisoned witness 

refuses to testify during a criminal trial despite a grant of immunity. See United States v. 

Wilson, 421 U.S. 309 (1975). See also supra section 5.04: Handling the recalcitrant witness. 
Section 7.01: Contempt—criminal

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 231

der Rule 42(b), the court may impose a sentence that does not exceed 

the punishment authorized for a petty offense, i.e., imprisonment of 

no more than six months or a fine of no more than $5,000 if the contemnor is an individual, $10,000 if the contemnor is an organization. 

If more severe punishment seems appropriate, the court must proceed by notice under Rule 42(a) and accord the contemnor the right 

to a jury trial. (Contempt fines exceeding the petty offense limit on 

organizations have been imposed without the right to a jury trial. See 

Muniz v. Hoffman, 422 U.S. 454 (1975); United States v. Twentieth 

Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989); United States v. 

Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982). These cases, however, did not involve summary proceedings under Rule 42(a) (now 

42(b)).] 

5. Before proceeding, be sure that an adequate number of marshals are 

in the courtroom. 

6. Retire the jury. Have the offender brought before you. (The offender 

is not entitled to counsel in a summary proceeding.) 

7. Advise the offender that you intend to find him or her in criminal 

contempt for obstructing the administration of justice by reason of 

[here describe the conduct]. 

8. Ask the offender if he or she would care to say anything in mitigation. 

9. After hearing the offender out, impose sentence in words to this effect: 

 I find you in criminal contempt for so conducting yourself in this 

courtroom that you obstructed the administration of justice. The 

conduct for which I find you in criminal contempt was [here describe the conduct observed by you]. I sentence you to ____ 

hour(s) [day(s)] in jail [or I fine you $____] for that conduct. [In 

criminal contempt you cannot both imprison and fine.] The serving of this sentence shall commence at once [or shall commence 

at the conclusion of this trial]. 

(a) No sentencing guideline has been prescribed for contempt because of the variety of behaviors covered. See U.S.S.G. § 2J1.1, 

Application Note 1.2

 In the absence of a guideline, the court is to 

“impose an appropriate sentence, having due regard for the purposes set forth in [18 U.S.C. § 3553(a)(2),] . . . for the relationship 

of the sentence imposed to sentences prescribed by guidelines 

applicable to similar offenses and offenders, and to the applica-

 

 2. The application notes do, however, provide cross-references to other guidelines for 

when the contemptuous conduct involves obstruction of justice, willful failure to pay courtordered child support, or violation of a judicial order enjoining fraudulent behavior. 
Section 7.01: Contempt—criminal 

232 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

ble policy statements of the Sentencing Commission.” 18 U.S.C. 

§ 3553(b). 

(b) It is possible for the court to find a person in summary criminal 

contempt but to defer commencement of the sentence until the 

trial ends. In this case, however, using the Fed. R. Crim. P. 42(a) 

procedure rather than the summary procedure of 42(b) is probably best. 

10. You must prepare, sign, and file an order of contempt. This order is 

intended to permit informed appellate review. The order must contain all that you saw or heard that obstructed the proceedings and by 

reason of which you found the defendant in contempt. Remember, 

for your action to be sustained on appeal, the conduct described in 

your order must constitute an obstruction to the administration of 

justice. Be sure, therefore, that the order fully and accurately recites 

all of the obstructive conduct that you saw or heard. The order of contempt must contain your certification that the described conduct was 

seen or heard by you and was committed in your presence. The form 

of the order of contempt may be as follows: 

 In conformity with Rule 42(b), Federal Rules of Criminal Procedure, I hereby certify that the following was committed in 

my presence and was seen or heard by me: [Here insert a detailed recital of the acts constituting the contemptuous conduct.] 

Because of the foregoing conduct, which obstructed and disrupted the court in its administration of justice, I sentenced 

[name of contemnor] to hours/days in jail, the said jail sentence to commence [at once/at the conclusion of the trial] [or I 

fined [name of contemnor] $ ].

11. You must date and sign the order of contempt and file it without delay. 

Procedure when contemptuous conduct is not personally observed by 

the judge or when the conduct is observed by the judge but requires no 

immediate action 

If you become aware of conduct that is within the contemplation of 18 U.S.C. 

§ 401 but did not occur in your presence, or if you observed contemptuous 

conduct but it did not actually disrupt court proceedings, you must proceed 

under Fed. R. Crim. P. 42(a), which requires that the contempt be prosecuted by notice rather than summarily. 
Section 7.01: Contempt—criminal

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 233

Under Fed. R. Crim. P. 42(a): 

1. The notice may be given 

(a) orally by you in open court in the defendant’s presence; or 

(b) by an order to show cause; or 

(c) by an order of arrest. 

2. If giving oral notice to the defendant in open court is not possible, 

you should ask the U.S. attorney to prepare for your signature an order to show cause directed to the defendant and ordering the defendant to show cause why he or she should not be found in criminal 

contempt because of the offending conduct. 

3. The notice, whether oral or written, must set down a definite time 

and place for the hearing and must describe the conduct constituting 

the charged contempt and describe it as being criminal contempt. 

You must accord the defendant a reasonable period in which to engage an attorney and prepare a defense. 

Remember that under the rule, another judge must conduct the 

trial if the contemptuous conduct involved criticism of or disrespect 

for you, unless the defendant expressly waives the right to trial by 

another judge. 

4. Because a person found guilty of criminal contempt may be imprisoned, the defendant has a right to counsel. If the defendant cannot 

afford counsel, you must appoint an attorney for him or her. 

5. The defendant has a right to a jury trial unless, before trial, you, on 

your own motion or on the government’s motion, limit the maximum 

sentence that you will impose to the maximum authorized for a petty 

offense, that is, imprisonment for six months or a fine of $5,000 (for 

an individual; the fine limit on organizations for petty offenses is 

$10,000 (but see Muniz v. Hoffman, 422 U.S. 454 (1975); United States 

v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989); 

United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982), allowing contempt fines on organizations in excess of those authorized for 

petty offenses, without the right to a jury trial). 

6. At trial, whether a bench or jury trial, remember that the defendant is 

being tried for a crime and is entitled to all the protections to which 

anyone accused of a crime is entitled. The defendant has a right to 

testify and to call witnesses on his or her own behalf but cannot be 

compelled to testify. The defendant is to be found guilty only if his or 

her guilt is proven beyond a reasonable doubt. 

7. If found guilty, the defendant should be sentenced in the same 

manner as any defendant convicted of a crime. You may wish to order 

a presentence report and to set down the sentencing for a later date. 
Section 7.01: Contempt—criminal 

234 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

8. If the defendant has been afforded the right to a jury trial, there is no 

statutory maximum to the fine or imprisonment that may be imposed. However, you may not impose both imprisonment and a fine. 

Because of the variety of behaviors covered, no sentencing guideline 

has been prescribed for contempt. See U.S.S.G. § 2J1.1, Application 

Note 1.3

 In the absence of a guideline, the court is to “impose an appropriate sentence, having due regard for the purposes set forth in 

[18 U.S.C. § 3553(a)(2),] . . . for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the 

Sentencing Commission.” 18 U.S.C. § 3553(b)(1).

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 30–43 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

 

 3. The application notes do, however, provide cross-references to other guidelines for 

when the contemptuous conduct involves obstruction of justice, willful failure to pay courtordered child support, or violation of a judicial order enjoining fraudulent behavior. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 235

7.02 Contempt—civil 

Fed. R. Crim. P. 42; 18 U.S.C. § 401

Background 

The purpose, procedure, and penalty for civil contempt differ from 

those for criminal contempt. It is essential that the trial judge make 

clear on the record whether the proceeding is for civil or criminal contempt. 

 The purpose of criminal contempt is to punish a person for a past 

act of contempt. Criminal contempt has the characteristics of a crime, 

and the contemnor is cloaked with the safeguards of one accused of a 

crime. The primary purpose of civil contempt is to compel someone to 

do or not do a certain act. 

 Case law makes clear that the contempt power is one to be 

exercised with the greatest restraint and that, in exercising that power, 

a court should exert only the power needed to achieve the desired end. 

 Civil contempt serves one or both of the following purposes: 

1. to coerce the contemnor into complying in the future with a court order; or 

2. to compensate the complainant for damages resulting from the contemnor’s past noncompliance. 

Controlling statute and rule 

The only statute applying directly to civil contempt is 28 U.S.C. § 1826(a), 

which applies only to recalcitrant witnesses (see supra section 5.04: Handling 

the recalcitrant witness). However, 18 U.S.C. § 401(3) does have some application to civil contempt, 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 other, as— 

 . . . . 

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, 

or command. 

 There is no civil rule comparable to Fed. R. Crim. P. 42. In a civil contempt 

proceeding, you should follow the procedure outlined in Fed. R. Crim. P. 

42(a) to the extent that it applies, as follows: 

(a) Disposition After Notice. Any person who commits criminal contempt 

may be punished for that contempt after prosecution on notice. 

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must: 

(A) state the time and place of the trial; 

(B) allow the defendant a reasonable time to prepare a defense; and 

NOTE

If you are dealing 

with a recalcitrant 

witness, see supra

section 5.04: Handling the recalcitrant witness.
Section 7.02: Contempt—civil 

236 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

(C) state the essential facts constituting the charged criminal contempt and describe it as such. 

(2) Appointing a Prosecutor. The court must request that the contempt be 

prosecuted by an attorney for the government, unless the interest of 

justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to 

prosecute the attempt. 

(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the 

criminal contempt involves disrespect toward or criticism of a judge, 

that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, 

the court must impose the punishment. 

Civil contempt procedure 

The contempt will normally come before you on the petition of a civil litigant 

seeking the imposition of sanctions by reason of another party’s failure to 

comply with a court order. 

 When one party petitions to have another found in civil contempt, you 

should proceed as follows: 

1. Set down a time and place for a hearing on the petition. The respondent must be accorded a reasonable period in which to engage an attorney and prepare a defense. 

2. Because a person found in civil contempt may be imprisoned, the respondent has a right to counsel. If the respondent desires an attorney but cannot afford one, you must appoint counsel for him or her 

unless waived (see supra section 1.02: Assignment of counsel or pro 

se representation). 

3. The respondent in a civil contempt proceeding has no right to a jury 

trial, because the respondent, if imprisoned, can secure immediate 

release by complying with the court’s order. 

4. The hearing is to be by way of the live testimony of witnesses, not by 

way of affidavit. Note that the Federal Rules of Evidence apply to 

contempt proceedings. See Fed. R. Evid. 1101(b). 

5. The respondent is to be found in civil contempt only if his or her contempt is established by clear and convincing evidence. In contrast 

with the procedure for criminal contempt, the respondent’s guilt 

need not be proved beyond a reasonable doubt. 

6. If the respondent is found guilty of civil contempt, you have wide 

discretion in fashioning a remedy. 

(a) You may imprison the contemnor until he or she purges himself 

or herself of contempt by complying with the court’s order, you 
Section 7.02: Contempt—civil 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 237

may impose a prospective conditional fine (such as a certain 

monetary amount per day) until the contemnor complies with the 

court’s order, or you may both incarcerate the contemnor and impose a conditional fine. (There is no statutory ceiling on a conditional fine. You must, however, weigh the financial circumstances 

of the contemnor in fixing a conditional fine.) 

(b) You may in addition impose a fine on the contemnor to be paid to 

the aggrieved party, to reimburse the party for damages suffered 

because of the contemnor’s conduct. This fine may not, however, 

exceed the actual damages suffered by the aggrieved party. It 

may, under certain circumstances, include an award to the aggrieved party of the attorney’s fees and costs in bringing the contempt proceeding. 

7. If you incarcerate the contemnor or impose a conditional fine, advise 

the contemnor that he or she may purge himself or herself of contempt by complying with the court’s order and that, upon complying, 

the contemnor will be released from jail and his or her fine, if one was 

imposed, will stop accumulating. 

8. Prepare, sign, and file an Order in Civil Contempt, setting forth your 

findings of fact, your conclusions of law, and the precise sanctions 

you have imposed. 

Other FJC sources 

Manual on Recurring Problems in Criminal Trials 30–33 (Tucker Carrington 

& Kris Markarian eds., 6th ed. 2010) 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 239

7.03 Injunctions 

Fed. R. Civ. P. 65 

I. Temporary restraining orders 

A. Background 

Considering an application for a temporary restraining order (TRO) is, by 

definition, an emergency proceeding of such urgency that relief may be 

granted ex parte. At the outset, the court should be satisfied that there is 

truly an emergency and decline to consider the application if there is not. 

The court should also verify that it has jurisdiction over the matter. 

 Note that whether or not the TRO is granted, Fed. R. Civ. P. 52(a)(1) & (2) 

requires the court to “state the findings [of fact] and conclusions [of law] 

that support its action,” and the court’s “findings and conclusions may be 

stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.” 

B. TRO without notice 

Fed. R. Civ. P. 65(b)(1) permits granting a TRO without written or oral notice 

to the adverse party or the party’s attorney1 only if 

1. there are specific facts, shown by affidavit or verified complaint, 

clearly indicating that immediate and irreparable injury will result to 

the applicant before the adverse party or his or her attorney can be 

heard in opposition; and 

2. there is a written certification of the attorney’s attempts, if any, to 

give notice, and an explanation of why notice should not be required. 

Other factors the court may consider are 

1. probability of success on the merits; 

2. balance of harm to other interested parties if the TRO is issued 

against the harm to the applicant if relief is denied; and 

3. the public interest. 

C. TRO with notice 

1. If notice is given, the standards governing issuance of a preliminary 

injunction are applicable. 

2. The petition may be treated like one for a preliminary injunction if 

there is notice and a hearing, and adequate opportunity is provided 

for developing legal and factual issues. The court should, however, 

 

 1. The advisory committee notes stress that “informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.” 

Note to 1966 amendment to Fed. R. Crim. P. 65(b). 
Section 7.03: Injunctions 

240 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

consider the applicability of Fed. R. Civ. P. 6(c)(1) (requiring fourteen 

days’ notice before hearing on motion, but granting court discretion 

to modify the time period). 

3. If there is notice but no hearing, or a hearing that does not permit 

adequate opportunity for the development of legal and factual issues, no preliminary injunction may issue. 

D. Contents of order 

Fed. R. Civ. P. 65(b)(2) provides that if the TRO is granted without notice, the 

order shall 

1. be endorsed with the date and hour of the issuance; 

2. be filed forthwith in the clerk’s office and entered on the record; 

3. define the injury and state why it is irreparable and why the order 

was granted without notice; and 

4. expire by its terms within such time after entry as the court fixes (but 

no more than fourteen days), unless within the time fixed by the 

court good cause is shown to extend the order for a like period, or unless the party against whom the order is directed consents to a longer 

period. 

These requirements, particularly with regard to a restraining order’s duration, should be applied to a TRO even when notice has been given. In addition, Fed. R. Civ. P. 65(d) provides that every restraining order shall 

1. set forth the reasons for its issuance; 

2. be specific in terms; 

3. describe in reasonable detail, and not by reference to the complaint 

or other documents, the act or acts to be restrained2

; and 

4. bind only the parties to the action; the parties’ officers, agents, servants, employees, and attorneys; and persons in active concert or 

participation with the parties who receive actual notice of the order. 

E. Motion for dissolution after notice 

On two days’ notice to the party that obtained the TRO without notice, or on 

such shorter notice as the court may prescribe, the adverse party may appear and contest a TRO that was issued without notice. Fed. R. Civ. P. 

65(b)(4). 

 

 2. Care should be taken to ensure that the terms of the order are clear and specific. As 

one court phrased it, “a court must craft its orders so that those who seek to obey may know 

precisely what the court intends to forbid.” American Red Cross v. Palm Beach Blood Bank, 

Inc., 143 F.3d 1407, 1411 (11th Cir. 1998). 
Section 7.03: Injunctions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 241

F. Security 

A TRO may not be issued unless the applicant gives such security as the 

court fixes. This security requirement does not apply to the United States. 

Fed. R. Civ. P. 65(c). 

G. The hearing record 

The hearing on an application for a TRO, including pleadings and evidence 

taken, becomes a part of the record in the later injunction hearing and need 

not be repeated. 

 Whether or not the TRO is granted, Fed. R. Civ. P. 52(a)(1) & (2) requires 

the court to “state the findings [of fact] and conclusions [of law] that support 

its action.” The court’s “findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.” 

II. Preliminary injunctions 

A. Notice and hearing 

A preliminary injunction may not be issued without notice. Fed. R. Civ. 

P. 65(a)(1). The rule does not specify the form of notice or how much notice is 

required. However, Fed. R. Civ. P. 6(c)(1) requires that notice of a hearing, 

and affidavits that support a motion, be provided “at least 14 days before 

the time specified for the hearing” unless the court provides otherwise. For 

shorter time periods, and for the form of notice, general considerations of 

due process and fairness should be applied. 

 Generally, some kind of hearing will be held, although the form of the 

hearing will depend upon the record before the court. For example, if there is 

no disputed issue of fact, the determination of whether to issue the injunction may be made on the papers alone, with or without oral argument. Even 

if there is a disputed issue of fact, a witness’s direct testimony may be presented by way of affidavit and the witness may be subject to crossexamination. 

B. Burden of proof 

The moving party has the burden of demonstrating entitlement to relief. 

Rule 65 does not specify the requirements for a preliminary injunction, and 

they vary from circuit to circuit, but the courts generally consider 

1. the likelihood that the moving party will suffer irreparable injury in 

the absence of a preliminary injunction; 

2. the moving party’s likelihood of success on the merits; 

3. the balance of hardships between the parties (and any relevant nonparties); and 
Section 7.03: Injunctions 

242 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

4. the effect on public policy of granting or denying the preliminary injunction. 

Absent extraordinary circumstances, a preliminary injunction will not be issued where an adequate remedy at law exists, that is, where the moving 

party could be compensated by money damages. An exception to this general rule exists when it is shown that a money judgment will go unsatisfied 

absent equitable relief, such as when the target of the injunction is insolvent 

or is likely to transfer or dissipate assets to avoid payment. 

C. Preparing for the hearing 

Because a decision must be reached quickly and the time to prepare for the 

hearing may be brief, it may help the parties and the court if some matters 

are addressed before the hearing. The court may, for example, 

1. narrow the legal scope of the hearing by eliminating claims, defenses, and counterclaims that do not relate directly to the decision 

of whether to issue a preliminary injunction; 

2. narrow the factual scope of the hearing by directing the parties to 

submit statements of undisputed facts or requests for admission; 

3. direct counsel to identify any witnesses in advance, along with the 

substance of their testimony and the exhibits they will sponsor; 

4. require that direct testimony be offered in the form of adopted narrative statements, exchanged in advance, which will be subject to motions to strike, to cross-examination, and to redirect at the hearing if 

issues of credibility are presented; 

5. direct counsel to exchange proposed exhibits in advance, give notice 

that objections may be treated as waived if not made in writing in advance of the hearing, and resolve objections to foundation before the 

hearing; 

6. direct counsel to present stipulated summaries or extracts of any 

deposition testimony to be used in lieu of lengthy readings of transcripts; and 

7. direct counsel to submit briefs in advance of the hearing, along with 

proposed findings of fact and conclusions of law. 

If the court determines that no substantial factual disputes exist, consider 

holding the hearing only on the affidavits. 

D. Advancing trial on the merits 

At any time before or during the hearing on the motion, trial on the merits 

may be advanced and consolidated with the preliminary injunction motion, 

on motion or by the court sua sponte. Fed. R. Civ. P. 65(a)(2). It should be 

done on notice and might be appropriate when, for example, expedited discovery has produced virtually all of the discovery that would be produced for 
Section 7.03: Injunctions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 243

trial on the merits. Adequate notice must be provided to allow sufficient 

preparation for trial, and the court should consider whether the case is sufficiently urgent to give it preference over others. Note that the rule provides 

that consolidation “must preserve any party’s right to a jury trial.” 

 Whether or not consolidation is ordered, “evidence that is received on 

the motion and that would be admissible at trial becomes part of the trial 

record and need not be repeated at trial. Fed. R. Civ. P. 65(a)(2). However, 

the court’s findings of fact and conclusions of law made in connection with 

the motion for preliminary injunction are not binding at the trial and the decision on the merits. 

E. Decision and findings 

As with a TRO, see supra section I.D, Rule 65(d)(1) sets out the form and 

scope of the order granting an injunction (or restraining order) and notes, 

inter alia, that such orders shall 

1. set forth the reasons for issuance (which should, of course, include a 

finding of no adequate remedy at law); and 

2. describe in reasonable detail and not by reference to other documents the acts to be restrained or compelled. Thus, such an order 

should adequately inform the reader of the acts that are enjoined or 

compelled. 

In addition, Fed. R. Civ. P. 52(a)(1) & (2) states that when “granting or refusing an interlocutory injunction, the court must . . . state the findings [of fact] 

and conclusions [of law] that support its action.” The court’s “findings and 

conclusions may be stated on the record after the close of the evidence or 

may appear in an opinion or a memorandum of decision filed by the court.” 

 Note that a preliminary injunction is binding “only upon the parties to 

the action, their officers, agents, servants, employees, and attorneys, and 

upon those persons in active concert or participation with them who receive 

actual notice of the order of personal service or otherwise.” Fed. R. Civ. P. 

65(d)(2). 

F. Security 

As with a temporary restraining order, a preliminary injunction generally 

may not be issued unless the applicant posts security in an amount deemed 

appropriate by the court in its discretion, although a nominal amount may 

be required. Fed. R. Civ. P. 65(c). The court may also dispense with security 

when, for example, the movant has adequate resources to pay damages for a 

wrongfully issued injunction. If nominal or no security is ordered, the court 

should explain its reasons. The rule provides that no security shall be required of the government or its officers or agencies. 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 245

7.04 Grand jury selection and instructions 

Fed. R. Crim. P. 6; 18 U.S.C. §§ 3321, 3331–3333

Procedure 

The Jury Act, 28 U.S.C. § 1863(b)(7), states that the district jury plans required by that section may provide that the names of persons summoned 

for possible grand jury service be kept confidential. In addition, the Judicial 

Conference of the United States recommended at its session in September 

1981 “that the district courts reexamine their jury selection plans . . . to consider whether the names of grand jurors should be excluded from public records.” Report of the Proceedings of the Judicial Conference of the United States

39–40 (1981). The jury plans of many of the district courts now provide, 

therefore, that the names of grand jurors be kept confidential. Accordingly, 

the grand jury must be selected in closed session with only necessary court 

personnel and attorneys for the government in attendance so that the jurors’ names will not be revealed in open court. Fed. R. Crim. P. 6(d) and 

(e)(5). 

 The grand jury consists of not fewer than sixteen persons (a quorum) 

and not more than twenty-three persons. 18 U.S.C. § 3321; Fed. R. Crim. P. 

6(a)(1). Alternate grand jurors may be selected. Fed. R. Crim. P. 6(a)(2). After 

twenty-three persons have been selected as regular members of the grand 

jury, the usual practice in some districts is to call four to six alternates, who 

are sworn and instructed with the regular members. These alternates are 

then excused with the explanation that they will be subject to call, in the order in which they were selected, if it subsequently becomes necessary to excuse one of the regular members and replace that person with an alternate 

(to facilitate the assemblage of a quorum during the remaining life of the 

grand jury). 

 To accommodate the selection of alternates and the possibility of a few 

excusals for cause, the panel summoned to the courtroom for grand jury selection should consist of thirty to thirty-five persons. 

 A regular grand jury may serve up to eighteen months, followed by one 

extension, if that is determined to be in the public interest, for up to six 

months. Fed. R. Crim. P. 6(g). The usual term varies from district to district. 

Special grand juries formed pursuant to 18 U.S.C. §§ 3331–3333 may serve, 

with extensions, up to thirty-six months, and they have the added power of 

making certain reports under § 3333.

Opening statement to the venire panel 

It is a pleasure to welcome you on behalf of the judges of the United States 

District Court for _____________, as potential members of the grand jury 

for the period _________ through ________. 
Section 7.04: Grand jury selection and instructions 

246 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 Although my welcoming remarks are intended for all, only twenty-three 

of you, plus ____ alternates, will be selected to form this new grand jury. 

Also, although your term will be for the next ____ months, you will sit as a 

jury from time to time only when called on by the Office of the U.S. Attorney. I cannot tell you in advance how much time will be involved, but normally you can expect to be called an average of ___ days a month during 

your term of office. 

 Federal law requires that we select the grand jury from a pool of persons 

chosen at random from a fair cross section of the district in which the grand 

jury is convened. At this time, you are the pool of persons from which that 

selection is to be made. 

 The grand jury is involved with criminal matters. It does not concern itself with civil matters. Generally speaking, a criminal matter is one in which 

the government seeks to enforce a criminal law. By contrast, a civil matter is 

a court proceeding in which one party seeks to recover money damages or 

other relief from another party. The trial jury in a criminal matter listens to 

the evidence offered by the prosecution and defense during trial and renders 

a verdict of guilty or not guilty. The functions of a grand jury are quite different from those of a trial jury. A grand jury does not determine guilt or 

innocence. Its sole function is to decide, after hearing the government’s evidence and usually without hearing evidence from the defense, whether a 

person should be indicted and stand trial for a federal crime. 

 Since the grand jury performs such an important role in protecting rights 

guaranteed by the Constitution, you should view it as a real privilege and 

honor to have an opportunity to serve. 

 We will now proceed with the selection of the grand jury. As the first 

step in the process, I am going to ask the clerk to call you forward in groups 

of ___ [usually 12] persons at a time so that I might ask each of you a few 

questions concerning your possible service as members of the grand jury. 

Voir dire examination of the panel 

1. Please state your name, occupation, and employer. 

 [This information may assist you later in choosing and designating a 

foreperson and deputy foreperson pursuant to Fed. R. Crim. P. 6(c).] 

2. Have any of you ever had, or are any of you currently having, any experience with a grand jury or with other aspects of the criminal justice system—as a witness, a victim, or an indicted person, for example—which 

might now make it difficult for you to serve impartially if you are selected? 

3. Do any of you have any other reason why you cannot or should not 

serve on the grand jury? 
Section 7.04: Grand jury selection and instructions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 247

 [Excuse any members of the panel whose responses to the voir dire 

questions dictate that they should be excused for cause.] 

Selection and oath 

1. Have the clerk call at random the names of twenty-three to twenty-nine 

persons from the remaining members of the panel. The first twentythree shall constitute the regular members of the grand jury, and the 

others (one to six) shall constitute the alternates. After the grand jury 

and alternates have been chosen, excuse the remaining members of the 

panel. 

2. Designate and appoint a foreperson and deputy foreperson under Fed. 

R. Crim. P. 6(c). 

3. Have the clerk administer the oath: 

Do each of you solemnly swear [affirm] to diligently inquire into and 

make true presentment or indictment of all such matters and things 

touching your present grand jury service that are given to you in 

charge or otherwise come to your knowledge; to keep secret the 

counsel of the United States, your fellows, and yourselves; and not 

to present or indict any person through hatred, malice, or ill will, nor 

to leave any person unpresented or unindicted through fear, favor, 

or affection or for any reward or hope or promise thereof, but in all 

your presentments and indictments to present the truth, the whole 

truth, and nothing but the truth to the best of your skill and understanding? If so, answer “I do.” 

Grand jury charge1

Give the court’s charge or instructions to the grand jury (including the alternates): 

Ladies and gentlemen: 

1. Now that you have been empaneled and sworn as a grand jury, it is 

the court’s responsibility to instruct you as to the law which should 

govern your actions and your deliberations as grand jurors. 

2. The framers of our Federal Constitution deemed the grand jury so 

important for the administration of justice, they included it in the Bill 

of Rights. The Fifth Amendment to the United States Constitution 

provides in part that no person shall be held to answer for a capital 

or otherwise infamous crime without action by a grand jury. An infamous crime is a serious crime which may be punished by impris-

 

 1. This grand jury charge was written by the Benchbook Committee of the Federal Judicial Center and the Court Administration and Case Management Committee of the Judicial 

Conference of the United States. It was approved in 2005 as a replacement for each group’s 

earlier grand jury charge. 
Section 7.04: Grand jury selection and instructions 

248 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

onment for more than one year. The purpose of the grand jury is to 

determine whether there is sufficient evidence to justify a formal accusation against a person—that is, to determine if there is “probable 

cause” to believe the person committed a crime. If law enforcement 

officials were not required to submit to an impartial grand jury proof 

of guilt as to a proposed charge against a person suspected of having committed a crime, they would be free to arrest a suspect and 

bring that suspect to trial no matter how little evidence existed to 

support the charge. 

3. The grand jury is an independent body and does not belong to any 

branch of the government. As members of the grand jury, you, in a 

very real sense, stand between the government and the person being 

investigated by the government. A federal grand jury must never be 

made an instrument of private prejudice, vengeance, or malice. It is 

your duty to see to it that indictments are returned only against 

those who you find probable cause to believe are guilty and to see to 

it that the innocent are not compelled to go to trial. 

4. A member of the grand jury who is related by blood or marriage to a 

person under investigation, or who knows that person well enough 

to have a biased state of mind as to that person, or is biased for any 

reason, should not participate in the investigation of that person or 

in the return of the indictment. This does not mean that if you have 

an opinion you should not participate in the investigation. However, 

it does mean that if you have a fixed opinion before you hear any evidence, either on a basis of friendship or ill will or some other similar 

motivation, you should not participate in that investigation and in 

voting on the indictment. 

5. Sixteen of the twenty-three members of the grand jury constitute a 

quorum and must be present for the transaction of any business. If 

fewer than this number are present, even for a moment, the proceedings of the grand jury must stop. 

Limitation on the powers of the grand jury 

6. Although as grand jurors, you have extensive powers, they are limited in several important respects. 

7. You can only investigate conduct which violates federal criminal 

laws. Criminal activity which violates state law is outside your inquiry. Sometimes, though, the same conduct violates both federal 

and state law, and this you may properly consider. 

8. There is also a geographic limitation on the scope of your inquiries in 

the exercise of your power. You may inquire only as to federal offenses committed in this district. 
Section 7.04: Grand jury selection and instructions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 249

9. You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal 

law designating certain activity as criminal. That is to be determined 

by Congress and not by you. 

10. Furthermore, when deciding whether or not to indict, you should not 

consider punishment in the event of conviction. 

The grand jury’s tasks and procedures 

11. The cases which you will hear will come before you in various ways. 

Frequently, suspects are arrested during or shortly after the commission of an alleged crime, and they are taken before a magistrate 

judge, who then holds a preliminary hearing to determine whether 

there is probable cause to believe that the person has committed a 

crime. If the magistrate judge finds such probable cause, he or she 

will direct that the person be held for the action of the grand jury so 

that you can independently consider whether there should be an indictment. 

12. Other cases will be brought before you by a government attorney—

the U.S. attorney or an assistant U.S. attorney—before an arrest but 

after an investigation has been conducted by a governmental agency, 

such as the Federal Bureau of Investigation, the Treasury Department, the Drug Enforcement Administration, Postal Authorities, or 

other federal law enforcement officials. 

13. Since the government attorney has the duty of prosecuting persons 

charged with the commission of federal crimes, the government attorney will present the matters which the government wants you to 

consider. The government will point out to you the laws which it believes have been violated, and will subpoena for testimony before 

you such witnesses as the government attorney may consider important and necessary and also any other witnesses that you may request or direct be called before you. 

14. If during the course of your hearings, a different crime other than the 

one you are investigating surfaces, you have the right to pursue this 

new crime. Although you can subpoena new witnesses and documents, you have no power to employ investigators or to expend federal funds for investigative purposes. If the government attorney refuses to assist you or if you believe he or she is not acting impartially, 

you may take it up with me or any judge of this court. You may use 

this power even over the active opposition of the government’s attorneys, if you believe it is necessary to do so in the interest of justice. 
Section 7.04: Grand jury selection and instructions 

250 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Evidence 

15. The evidence you will consider will normally consist of oral testimony 

of witnesses and written documents. Each witness will appear before 

you separately. When the witness first appears before you, the grand 

jury foreperson will administer to the witness an oath or affirmation 

to testify truthfully. After this has been accomplished, the witness 

may be questioned. Ordinarily, the government attorney questions 

the witness first. Next, the foreperson may question the witness, and 

then any other members of the grand jury may ask questions. In the 

event a witness does not speak or understand the English language, 

an interpreter may be brought into the grand jury room to assist in 

the questioning. 

16. Witnesses should be treated courteously and questions put to them 

in an orderly fashion. If you have any doubt whether it is proper to 

ask a particular question, ask the government attorney for advice. If 

necessary, a ruling may be obtained from the court. 

17. You alone decide how many witnesses you want to hear. You can 

subpoena witnesses from anywhere in the country, directing the government attorney to issue necessary subpoenas. However, persons 

should not ordinarily be subjected to disruption of their daily lives, 

harassed, annoyed, or inconvenienced, nor should public funds be 

expended to bring in witnesses unless you believe they can provide 

meaningful evidence which will assist you in your investigation. 

18. Every witness has certain rights when appearing before a grand jury. 

Witnesses have the right to refuse to answer any question if the answer would tend to incriminate them and the right to know that anything they say may be used against them. The grand jury should hold 

no prejudice against a witness who exercises the right against compulsory self-incrimination, and this can play no part in the return of 

any indictment. 

19. Although witnesses are not permitted to have a lawyer present with 

them in the grand jury room, the law permits witnesses to confer 

with their lawyer outside of the grand jury room. Since an appearance before a grand jury may present complex legal problems requiring the assistance of a lawyer, you also cannot hold it against a witness if a witness chooses to exercise this right and leaves the grand 

jury room to confer with an attorney. 

20. Ordinarily, neither the person being investigated by the government 

nor any witnesses on behalf of that person will testify before the 

grand jury. Upon his or her request, preferably in writing, you may 

afford that person an opportunity to appear before you. Because the 

appearance of the person being investigated before you may raise 
Section 7.04: Grand jury selection and instructions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 251

complicated legal problems, you should seek the government attorney’s advice and, if necessary, the court’s ruling before his or her appearance is permitted. Before that person testifies, he or she must be 

advised of his or her rights and required to sign a formal waiver. You 

should be completely satisfied that the person being investigated 

understands what he or she is doing. You are not required to summon witnesses which that person may wish to have examined unless 

probable cause for an indictment may be explained away by their 

testimony. 

21. The determination of whether a witness is telling the truth is something that you must decide. Neither the court nor the prosecutors 

nor any officers of the court may make this determination for you. 

 As you listen to witnesses presented to you in the grand jury room 

and hear their testimony, remember that you are the judge of each 

witness’s credibility. You may believe the witness’s testimony, or you 

may not believe it, in whole or in part. Determining the credibility of 

a witness involves a question of fact, not a question of law. It is for 

you to decide whether you believe the person’s testimony. You may 

consider in that regard whether the witnesses are personally interested in the outcome of the investigation, whether their testimony 

has been corroborated or supported by other witnesses or circumstances, what opportunity they have had for observing or acquiring 

knowledge concerning the matters about which they testify, the reasonableness or probability of the testimony they relate to you, and 

their manner and demeanor in testifying before you. 

22. Hearsay is testimony as to facts which are not personally known by 

the witness but which have been told or related to the witness by 

persons other than the person being investigated. Hearsay testimony, if deemed by you to be persuasive, may in itself provide a basis for returning an indictment. You must be satisfied only that there 

is evidence against the accused showing probable cause, even if such 

evidence is composed of hearsay testimony that might or might not 

be admissible in evidence at a trial. 

23. Frequently, charges are made against more than one person. It will 

be your duty to examine the evidence as it relates to each person, and 

to make your finding as to each person. In other words, where 

charges are made against more than one person, you may indict all 

of the persons or only those persons who you believe properly deserve indictment.

Deliberation and vote 

24. After you have heard all the evidence you wish to hear in a particular 

matter, you will then proceed to deliberate as to whether the person 
Section 7.04: Grand jury selection and instructions 

252 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

being investigated should be indicted. No one other than your own 

members or an interpreter necessary to assist a juror who is hearing 

or speech impaired is to be present while you are deliberating or voting. 

25. To return an indictment charging an individual with an offense, it is 

not necessary that you find that individual guilty beyond a reasonable doubt. You are not a trial jury, and your task is not to decide 

the guilt or innocence of the person charged. Your task is to determine whether the government’s evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe 

that the person being investigated committed the offense charged. 

To put it another way, you should vote to indict where the evidence 

presented to you is sufficiently strong to warrant a reasonable person’s belief that the person being investigated is probably guilty of 

the offense charged. 

26. Each juror has the right to express his or her view of the matter under consideration. Only after all grand jurors have been given full 

opportunity to be heard will a vote be taken. You may decide after 

deliberation among yourselves that further evidence should be considered before a vote is taken. In such case you may direct the government attorney to subpoena the additional documents or witnesses you want to consider. 

27. When you have decided to vote, the foreperson shall designate a juror as secretary, who will keep a record of the vote, which shall be 

filed with the clerk of court. The record does not include the names 

of the jurors but only the number of those voting for the indictment. 

Remember, at least sixteen jurors must be present at all times, and 

at least twelve members must vote in favor of an indictment before 

one may be returned. 

28. If twelve or more members of the grand jury, after deliberation, believe that an indictment is warranted, then you will request that the 

government attorney prepare the formal written indictment if one 

has not already been prepared and presented to you. The indictment 

will set forth the date and place of the alleged offense, will assert the 

circumstances making the alleged conduct criminal, and will identify 

the criminal statute violated. The foreperson will sign the indictment 

as a true bill in the space followed by the word “foreperson.” It is the 

duty of the foreperson to sign every indictment, whether the foreperson voted for or against. If fewer than twelve members of the grand 

jury vote in favor of an indictment which has been submitted to you 

for your consideration, the foreperson will endorse the indictment 

“Not a True Bill” and return it to the court and the court will impound it. 
Section 7.04: Grand jury selection and instructions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 253

29. Indictments which have been signed as a true bill will be presented to 

a judge [or a magistrate judge] in open court by your foreperson at 

the conclusion of each deliberative session of the grand jury. In the 

absence of the foreperson, a deputy foreperson may act in place of 

the foreperson and perform all functions and duties of the foreperson.

Independence of the grand jury 

30. It is extremely important for you to realize that under the United 

States Constitution, the grand jury is independent of the United 

States attorney and is not an arm or agent of the Federal Bureau of 

Investigation, the Drug Enforcement Administration, the Internal 

Revenue Service, or any governmental agency charged with prosecuting a crime. Simply put, as I have already told you, the grand jury is 

an independent body and does not belong to any branch of the government. 

31. However, as a practical matter, you must work closely with the government attorneys. They will provide you with important service in 

helping you to find your way when confronted with complex legal 

matters. It is entirely proper that you should receive this assistance. 

If past experience is any indication of what to expect in the future, 

then you can expect candor, honesty, and good faith in matters presented by the government attorneys. However, ultimately, you must 

depend on your own independent judgment, never becoming an arm 

of the United States Attorney’s Office. The government attorneys are 

prosecutors. You are not. If the facts suggest that you should not indict, then you should not do so, even in the face of the opposition or 

statements of the government attorney. You would violate your oath 

if you merely “rubber-stamped” indictments brought before you by 

the government representatives. 

32. Just as you must maintain your independence in your dealings with 

the government attorneys, so should your dealings with the court be 

on a formal basis. If you have a question for the court or desire to 

make a presentment or return an indictment to the court, you will 

assemble in the courtroom for these purposes. Moreover, each juror 

is directed to report immediately to the court any attempt by any 

person who under any pretense whatsoever addresses or contacts 

him or her for the purpose of or with the intent to gain any information of any kind concerning the proceedings of the grand jury, or to 

influence a juror in any manner or for any purpose. 
Section 7.04: Grand jury selection and instructions 

254 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

The obligation of secrecy

33. Your proceedings are secret and must remain secret permanently unless and until the court decrees otherwise. You cannot relate to your 

family, to the news or television reporters, or to anyone that which 

transpired in the grand jury room. There are several important reasons for this requirement. First, a premature disclosure of grand jury 

action may frustrate the ends of justice by giving an opportunity to 

the person being investigated to escape and become a fugitive or to 

destroy evidence. Second, if the testimony of a witness is disclosed, 

the witness may be subject to intimidation, retaliation, bodily injury, 

or other tampering before testifying at trial. Third, the requirement 

of secrecy protects an innocent person who may have come under 

investigation but has been cleared by the actions of the grand jury. In 

the eyes of some, investigation by a grand jury alone carries with it a 

suggestion of guilt. Thus, great injury can be done to a person’s 

good name even though the person is not indicted. And fourth, the 

secrecy requirement helps to protect the members of the grand jury 

themselves from improper contacts by those under investigation. For 

all these reasons, therefore, the secrecy requirement is of the utmost 

importance and must be regarded by you as an absolute duty. If you 

violate your oath of secrecy, you may be subject to punishment. 

34. To ensure the secrecy of grand jury proceedings, the law provides 

that only authorized persons may be in the grand jury room while 

evidence is being presented. Only the members of the grand jury, the 

government attorney, the witness under examination, the court reporter, and an interpreter, if required, may be present. 

35. If you ultimately vote to return an indictment, the presence of unauthorized persons in the grand jury room could invalidate it. Particularly remember that no person other than the grand jury members 

themselves or an interpreter necessary to assist a juror who is hearing or speech impaired may be present in the grand jury room while 

the jurors are deliberating and voting. Although you may disclose 

matters which occur before the grand jury to attorneys for the government for use by such attorneys in the performance of their duties, 

you may not disclose the contents of your deliberations and the vote 

of any juror even to a government attorney. 

Conclusion 

36. The importance of the service you will perform is demonstrated by 

the very comprehensive and important oath which you took a short 

while ago. It is an oath rooted in history, and thousands of your 

forebears have taken similar oaths. Therefore, as good citizens, you 
Section 7.04: Grand jury selection and instructions 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 255

should be proud to have been selected to assist in the administration 

of the American system of justice. 

37. The government attorney will now accompany you and will assist you 

in getting organized, after which you may proceed with the business 

to come before you. 

38. The United States marshal and deputy United States marshals will 

attend to you and be subject to your appropriate orders. 

39. You may now retire. 

[Note: It is suggested that grand jurors be provided either with a written copy 

of the charge or with the Handbook for Federal Grand Jurors (Judicial Conference of the United States and Administrative Office of the U.S. Courts 

1986).] 

[The remainder of the charge should be given only if the grand jury is a special grand jury being impaneled pursuant to 18 U.S.C. §§ 3331–3334.] 

Additional powers of a special grand jury 

As stated to you earlier, you are being impaneled as a special grand jury, as 

distinguished from a regular grand jury. 

 A regular grand jury is subject to two important restrictions: (1) its term 

or life is limited to a period of eighteen months, and (2) it can indict someone, on a finding of probable cause, or vote not to indict, but that is the 

extent of the action it can take; it cannot issue a report concerning its findings. 

 You, as a special grand jury, will be governed by a different set of rules 

or laws. First, while your term of service is also fixed at eighteen months 

(unless a majority of the jury determines sooner that your work has been 

completed), that term may be extended by the court for up to eighteen additional months. Second, unlike a regular grand jury, you are authorized 

under certain conditions at the end of your term to submit to the court, if a 

majority of you so desire, a report concerning your findings as to certain 

matters. 

 Specifically, the United States Code, title 18, section 3333, provides as 

follows: 

(a) A special grand jury impaneled by any district court, with the 

concurrence of a majority of its members, may, upon completion 

of its original term, or each extension thereof, submit to the 

court a report— 

(1) concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an ap-
Section 7.04: Grand jury selection and instructions 

256 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

pointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or 

(2) regarding organized crime conditions in the district. 

The U.S. attorney will explain to you in more detail your powers and duties 

under this law. As you approach the end of your term the court will give you 

additional instructions if you request, or answer any questions you might 

have. 
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 257

7.05 Foreign extradition proceedings 

18 U.S.C. §§ 3181–3196

A. Ascertain 

1. the identity of the detainee as the individual being demanded by a 

foreign nation; and 

2. whether the detainee is represented by counsel (see supra section 

1.02: Assignment of counsel or pro se representation). 18 U.S.C. 

§ 3006A(b). 

B. Inform the detainee 

1. of the charge or charges upon which extradition is sought and by 

which foreign nation; 

2. of the right to a public extradition hearing, 18 U.S.C. § 3189;

3. under what circumstances the United States will pay the costs for 

subpoenaing material witnesses for the detainee’s defense to extradition, 18 U.S.C. § 3191;

4. that at the hearing it will be determined: 

(a) whether the detainee is charged with a crime or crimes for which 

there is a treaty or convention for extradition between the United 

States and the demanding country, 18 U.S.C. §§ 3181, 3184; see 

also Collins v. Loisel, 259 U.S. 309 (1922); 

(b) whether the warrants and documents demanding the prisoner’s 

surrender are properly and legally authenticated, 18 U.S.C. 

§ 3190; and 

(c) whether the commission of the crime alleged is established by 

probable cause such as would justify commitment for trial if the 

offense had been committed in the United States, 18 U.S.C. 

§ 3184.

C. Obtain a waiver of hearing, hold the hearing, or grant a continuance if 

necessary (see supra section 1.03: Release or detention pending trial). 

D. If a hearing is held, determine whether the detainee is extraditable. 

E. If the detainee is found extraditable: 

1. Commit the detainee to jail under surrender to the demanding nation, unless “special circumstances” justify his or her release on bail. 

Wright v. Henkel, 190 U.S. 40 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 

914 (2d Cir. 1981). 

2. Notify the Secretary of State by filing a certified copy of your findings 

and a transcript of the proceedings. 

F. If the detainee is found not extraditable, notify the Secretary of State by 

filing an appropriate report certifying to that effect. 

NOTE

The Federal 

Rules of 

Criminal 

Procedure are 

not applicable 

to extradition 

proceedings. 

Fed. R. Crim. P. 

1(a)(5)(A).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 259

7.06 Naturalization proceedings 

8 U.S.C. §§ 1421, 1443–1448

The Immigration Act of 1990 changed the naturalization process from a judicial proceeding to an administrative proceeding. The following is a brief outline of current naturalization practice. Note that the role of the district court 

has been curtailed. 

Procedure

1. The applicant for naturalization commences the proceeding by filing an 

application for naturalization with the Attorney General. 

2. An employee of the Immigration and Naturalization Service (INS) examines the applicant and determines whether to grant or deny the application. The INS employee may invoke the aid of a district court in subpoenaing the attendance and testimony of witnesses and the production of 

books, papers, and documents. 8 U.S.C. § 1446(b), (d). 

3. If the INS denies the application, the applicant may request a hearing 

before an immigration officer. 8 U.S.C. § 1447(a). 

4. If the immigration officer denies the application, the applicant may seek 

de novo review in the federal district court. 8 U.S.C. § 1421(c). 

5. If the INS fails to make a determination on the application within 120 

days of the applicant’s interview, the applicant may apply to a district 

court for a naturalization hearing. The court may determine the matter or 

remand the matter to the INS with appropriate instructions. 8 U.S.C. 

§ 1447(b). 

6. If an application is approved, a district court with jurisdiction under 8 

U.S.C. § 1421(b) may administer the oath of allegiance. 

Oath of allegiance 

The following oath, based on the requirements listed in 8 U.S.C. § 1448(a), is 

designed for use with groups of applicants and includes various alternatives 

to bearing arms. 

Do you solemnly swear [affirm] to support the Constitution of the 

United States; to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of which you have previously been a citizen or subject; to support and defend the Constitution and the laws of the United States 

against all enemies, foreign and domestic; to bear true faith and allegiance to the same; and to bear arms on behalf of the United 

States when required by law [or to perform noncombatant service in 

the Armed Forces of the United States when required by law, or to 

perform work of national importance under civilian direction when 
Section 7.06: Naturalization proceedings 

260 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

required by law]? Do you take this obligation freely without any 

mental reservation or purpose of evasion? 

See also the oath provided at 8 C.F.R. § 337.1(a): 

I hereby declare, on oath, that I absolutely and entirely renounce and 

abjure all allegiance and fidelity to any foreign prince, potentate, 

state, or sovereignty, of whom or which I have heretofore been a 

subject or citizen; that I will support and defend the Constitution 

and laws of the United States of America against all enemies, foreign 

and domestic; that I will bear true faith and allegiance to the same; 

that I will bear arms on behalf of the United States when required by 

the law; that I will perform noncombatant service in the Armed 

Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any 

mental reservation or purpose of evasion; so help me God. 

 [Note: If the applicant refuses to bear arms or do noncombatant service in 

the armed forces, ascertain whether there is “clear and convincing evidence” 

that the refusal is based on “religious training and belief.” 8 U.S.C. 

§ 1448(a).]

 An individual may be granted an expedited judicial oath administration 

ceremony upon demonstrating sufficient cause. 

In determining whether to grant an expedited judicial oath administration 

ceremony, a court shall consider special circumstances (such as serious illness 

of the applicant or a member of the applicant’s immediate family, permanent 

disability sufficiently incapacitating as to prevent the applicant’s personal appearance at the scheduled ceremony, developmental disability or advanced 

age, or exigent circumstances relating to travel or employment). 

8 U.S.C. § 1448(c). 

 If the applicant possesses any hereditary title or orders of nobility in any 

foreign state, he or she must expressly renounce such title or orders of nobility in open court. 8 U.S.C. § 1448(b). 

 Address (or designate some member of the community to address, or invite some of the newly naturalized citizens to address) the naturalized citizens on the general topic of the meaning of U.S. citizenship and the importance of each citizen’s participation in the workings of a democracy. 36 

U.S.C. § 154.
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 261

7.07 Excluding the public from court 

proceedings 

A. Closing of the courtroom is appropriate upon the court’s own motion 

1. in proceedings other than an actual trial, for the court to receive testimony from or about grand jury proceedings, argument using such 

testimony, or discussions of such testimony; 

2. when the court receives testimony or argument on grand jury evidence or other sensitive information that is the subject matter of the 

closure motion; 

3. when the court determines it is necessary to protect a child witness 

from “substantial psychological harm” or when it would “result in the 

child’s inability to effectively communicate,” 18 U.S.C. § 3509(e); or 

4. when the law requires closure to protect some phase of a juvenile delinquency proceeding (18 U.S.C. § 5038). 

B. The steps in closing trial or pretrial proceedings upon motion by a party 

are as follows: 

1. Notice of motion 

 Ensure that interested parties, including the media, are given notice 

and an opportunity to defend against the motion in court. If public 

notice was given of a scheduled hearing, further notice is not necessarily required. If the motion is ex parte or at an unusual time, the 

court should delay the hearing until interested parties have been notified. 

2. The hearing 

The burden is on the movant seeking closure to show 

(a) that an overriding interest is likely to be prejudiced if closure is 

not granted. Such interests include 

(i) the defendant’s right to a fair trial; and 

(ii) the government’s interest in inhibiting disclosure of sensitive information (the court may, sua sponte, close the hearing to receive the preliminary information or proffer); 

(b) that alternatives to closure cannot adequately protect the overriding interest the movant is seeking to protect; and 

(c) that closure will probably be effective in protecting against the 

perceived danger. 
Section 7.07: Excluding the public from court proceedings 

262 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

3. Decision by the court 

(a) In a pretrial proceeding, when the moving party asserts that the 

defendant’s right to a fair trial will be prejudiced if hearings are 

conducted publicly, the court should consider 

(i) the nature and extent of the publicity to date; 

(ii) the size of the jury pool; 

(iii) the ease of a change of venue; 

(iv) the ability to cure any harm through voir dire; 

(v) whether the public already has the information; and 

(vi) the impact of further publicity on the publicity that has already occurred. 

(b) In deciding whether alternatives to closure can adequately protect the overriding interest that the movant seeks to protect, the 

court should consider the following alternatives: 

(i) granting a continuance; 

(ii) granting severance; 

(iii) changing the venue; 

(iv) changing the venire; 

(v) engaging in further voir dire questioning; 

(vi) permitting additional peremptory challenges; 

(vii) sequestering the jury; and 

(viii) instructing the jury. 

4. Findings and order 

(a) If the court decides to order closure 

(i) it must make findings that 

(a) without closure, there is a substantial probability that 

the defendant’s right to a fair trial would be impaired; 

(b) steps less drastic than closure would be ineffective in 

preserving the defendant’s right to a fair trial; and 

(c) closure would achieve the desired goal of protecting the 

defendant’s right to a fair trial. 

(ii) the closure must be as narrow as possible; 

(iii) the findings must be on the record; and 

(iv) the findings must be adequate to support an order of closure. 

(b) The order must 

(i) be no broader than is necessary to protect the interest asserted by the moving party; and 
Section 7.07: Excluding the public from court proceedings 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 263

(ii) be tailored to ensure that proceedings that are closed encompass no more than is actually necessary to protect the interest asserted by the moving party. 

(c) Determine whether the order itself should be sealed. 

Other FJC sources 

Recent Developments Regarding Standards and Procedures for Barring the Public from the Courtroom During a Criminal Trial, Bench Comment 1984, 

no. 2 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 265

7.08 Oaths

Affirmation in lieu of oath 

Any person who has conscientious scruples about taking an oath may be allowed to make an affirmation. See, e.g., Fed. R. Civ. P. 43(b); Fed. R. Crim. P. 

1(b)(6). Substitute the words “solemnly affirm” for the words “solemnly 

swear” at the beginning of the oath and delete the words “so help me God” at 

the end. (If appropriate, courts may wish to substitute “this I do affirm under 

the pain and penalties of perjury” for “so help me God” at the end.)

Sample oaths 

The following are suggested oaths for several situations. A statutory cite after 

an oath indicates that the oath is taken directly from the statute.

If the person taking an oath or making an affirmation does not understand English, the oath or affirmation should be in a language he or she understands.

Oath to attorneys

(admission to practice before the court)

I, _______________, do solemnly swear [or affirm] that to the best of my 

knowledge and ability I will support and defend the Constitution of the 

United States against all enemies, foreign and domestic, and that I will bear 

true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will demean 

myself as an attorney, proctor, and solicitor of this court uprightly and according to law, so help me God. 

Oath to clerks and deputies

(to be made by each clerk of court and all deputies before they assume their 

duties)

I, _______________, having been appointed _______________, do solemnly 

swear [or affirm] that I will truly and faithfully enter and record all orders, 

decrees, judgments, and proceedings of such court, and will faithfully and 

impartially discharge all other duties of my office according to the best of 

my abilities and understanding. So help me God. 

[28 U.S.C. § 951]

Oath to crier (bailiff)

(may be administered in those districts that employ a temporary court crier)

Do you solemnly swear [or affirm] that you will faithfully, impartially, and to 

the best of your ability discharge the duties of crier [bailiff] of this court, to 
Section 7.08: Oaths

266 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

which office you have been appointed, and will strictly obey all orders of the 

court and your superiors as crier [bailiff] during the session now being held, 

so help you God? 

Oath to crier (bailiff) to conduct jury to view place

Do you solemnly swear [or affirm] that you will, together with the United 

States Marshal, keep these jurors together and permit no one to talk to 

them, aside from the guides, nor talk to them yourself regarding the case 

under consideration, until discharged by the court, so help you God? 

Oath to guides to conduct jury to view place

Do each of you solemnly swear [or affirm] that you will guide these jurors 

on an inspection of the ___________ involved in this action and that you 

will permit no one to talk to them, nor talk to them yourselves, regarding 

the case under consideration, except as instructed by the court, so help you 

God? 

Oath to crier (bailiff) to keep jury during adjournment

Do you solemnly swear [or affirm] that you will keep the jurors composing 

this panel together until the next meeting of this court, and during all other 

adjournments of the court during the trial of this case; that you will permit 

no person to speak or communicate with them, nor do so yourself, on any 

subject connected with the trial; and that you will return them to court at 

the next meeting thereof, so help you God? 

Oath to crier (bailiff) and marshal after cause is submitted

Do you solemnly swear [or affirm] that you will keep these jurors together in 

some private and convenient place and not permit any person to speak to 

or communicate with them, nor do so yourself unless by order of the court, 

nor ask whether they have agreed on a verdict, and that you will return them 

to court when they have so agreed, or when ordered by the court, so help 

you God? 

Oath to defendant

(as to his or her financial ability to employ counsel)

Do you solemnly swear [or affirm] that all of the statements you are about 

to make relative to your financial ability to employ counsel will be the truth, 

the whole truth, and nothing but the truth, so help you God? 
Section 7.08: Oaths

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 267

Oath for deposition

Do you solemnly swear [or affirm] that all the testimony you are about to 

give in the matter now in hearing will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Oath to grand jury foreperson and deputy foreperson

Do you, as foreperson and deputy foreperson of this grand jury, solemnly 

swear [or affirm] that you will diligently inquire into and make true presentment or indictment of all public offenses against the United States 

committed or triable within this district of which you shall have or can obtain legal evidence; that you will keep your own counsel and that of your 

fellows and of the United States and will not, except when required in the 

due course of judicial proceedings, disclose the testimony of any witness 

examined before you, or anything which you or any other grand juror may 

have voted on in any matter before you; that you shall present or indict no 

person through malice, hatred, or ill will, nor leave any person unpresented 

or unindicted through fear, favor, or affection, or for any reward or for the 

promise or hope thereof; and that in all your presentments or indictments 

you shall present the truth, the whole truth, and nothing but the truth to 

the best of your skill and understanding, so help you God? 

Oath to other grand jurors

Do each of you solemnly swear [or affirm] that you shall diligently inquire 

into and make true presentment or indictment of all such matters and 

things touching your present grand jury service that are given to you in 

charge or that otherwise come to your knowledge; that you shall keep secret 

the counsel of the United States, your fellows, and yourselves; that you shall 

not present or indict any person through hatred, malice, or ill will, or leave 

any person unpresented or unindicted through fear, favor, or affection or 

for any reward or for the hope or promise thereof; and that in all your presentments and indictments you shall present the truth, the whole truth, and 

nothing but the truth to the best of your skill and understanding, so help 

you God? 

or 

Do each of you solemnly swear [or affirm] that you will well and truly observe on your part the same oath that your foreperson and deputy foreperson have now taken before you on their part, so help you God? 
Section 7.08: Oaths

268 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Oath to venirepersons

(to be administered at juror qualification or voir dire)

Do you solemnly swear [or affirm] that you will truthfully answer all questions that shall be asked of you regarding your qualifications as a juror in 

the case now called for trial, so help you God? 

Oath to interpreter

(The interpreter’s duties include interpreting the oath to the witness, the 

verbatim questions of the court and counsel, and the answers thereto.)

Do you solemnly swear [or affirm] that you will justly, truly, fairly, and impartially act as an interpreter in the case now before the court, so help you 

God? 

[Note: In addition to the initial oath, the Tenth Circuit has stated that “before 

the verdict is announced, [the court] should inquire . . . whether the interpreter abided by her oath to act strictly as an interpreter and not to participate in the deliberations. Ideally, the judge should then question the jurors 

to the same effect.” United States v. Dempsey, 830 F.2d 1084, 1092 (10th Cir. 

1987).]

Oath to interpreter for a deaf juror1

Do you solemnly swear [or affirm] that you will accurately interpret from the 

English language into the sign language understood by the juror, who is 

deaf, and from that language as used by the juror into the English language; 

that, while you are present in the jury room during the jury’s deliberations, 

your communications with that juror and the other jurors will be limited to 

translating for the deaf juror what the other jurors say and for the others 

what the deaf juror says, so that you will not express any of your own ideas, 

opinions, or observations or otherwise participate yourself in the jury’s deliberations; and that you will keep secret all that you hear in the jury room 

and will not discuss with anyone the testimony or merits of the case unless 

ordered differently by the court or authorized by the deaf juror after the trial 

is finished to disclose anything he or she said during the deliberations, so 

help you God? 

Oath to jurors in civil cases (including condemnation cases)

Do each of you solemnly swear [or affirm] that you will well and truly try the 

matters in issue now on trial and render a true verdict according to the law 

and the evidence, so help you God? 

1. This sample oath is based on one given to an interpreter in New York v. Green, 561

N.Y.S. 2d 130 (N.Y. County Ct. 1990). It is provided as one example of the form for such an 

oath.
Section 7.08: Oaths

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 269

Oath to jurors in criminal cases

(This oath may also be administered to alternate jurors by substituting for 

the first line: “Do you, as an alternate juror.”)

Do each of you solemnly swear [or affirm] that you will well and truly try, 

and a true deliverance make in, the case now on trial, and render a true verdict according to the law and the evidence, so help you God? 

Oath to master

Do you solemnly swear [or affirm] that you will well and truly hear and determine the facts and true findings according to the evidence, so help you 

God? 

Oath to reporter or stenographer

(for grand jury proceedings, to be administered by the grand jury foreperson)

Do you solemnly swear [or affirm] that you will well and truly take and record the evidence about to be presented to this grand jury; that you will 

translate such testimony as required; and that you will keep secret all information you receive as reported at these grand jury proceedings, except on 

order of the court, so help you God? 

Oath to witness

Do you solemnly swear [or affirm] that all the testimony you are about to 

give in the case now before the court will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Oath of allegiance

(naturalization proceedings)

I hereby declare, on oath, that I absolutely and entirely renounce and abjure 

all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I 

will support and defend the Constitution and laws of the United States of 

America against all enemies, foreign and domestic; that I will bear true faith 

and allegiance to the same; that I will bear arms on behalf of the United 

States when required by the law; that I will perform noncombatant service 

in the Armed Forces of the United States when required by the law; that I 

will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental 

reservation or purpose of evasion; so help me God. 

[8 C.F.R. § 337.1(a)]
Section 7.08: Oaths

270 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

[Note: If the petitioner refuses to bear arms, ascertain whether there is “clear 

and convincing evidence” that the refusal is based on “religious training and 

belief.” If so, the petitioner should be required to take the remainder of the 

oath, including at least one of the alternatives to bearing arms. 8 U.S.C. 

§ 1448(a). See also 8 C.F.R. § 337.1(b) (may substitute “and solemnly affirm” 

for “on oath”).]

Oath to justices, judges, and magistrate judges

I, ___________________, do solemnly swear [or affirm] that I will administer justice without respect to persons, and do equal right to the poor and to 

the rich, and that I will faithfully and impartially discharge and perform all 

the duties incumbent upon me as ___________ under the Constitution and 

laws of the United States. So help me God. 

[28 U.S.C. § 453]

Oath to public officials

(given to all individuals, except the President, who are “elected or appointed 

to an office of honor or profit in the civil service or uniformed services,” 5 

U.S.C. § 3331)

I, _____________________, do solemnly swear [or affirm] that I will support 

and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; 

that I take this obligation freely, without any mental reservation or purpose 

of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 

[5 U.S.C. § 3331]
Section 7.08: Oaths

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 271

Table	of	authorities	

The following is a brief compilation of authorities with respect to taking an 

oath or making an affirmation.

affirmation— 

in lieu of oath Fed. R. Civ. P. 43(b) 

Fed. R. Crim. P. 1(b)(6)

bankruptcy— 

authority to administer 11 U.S.C. § 343

clerks and deputies— 

oath of office 28 U.S.C. § 951

authority to administer oaths 28 U.S.C. § 953

deposition— 

taken before an officer or other 

person so appointed

Fed. R. Civ. P. 28(a)

grand jury foreperson— 

authority to administer oaths Fed. R. Crim. P. 6(c)

interpreter—to take oath Fed. R. Evid. 604

interrogatories— 

to answer under oath Fed. R. Civ. P. 33(b)(3) 

jurors, alternate— 

to take same oath as regular 

jurors

Fed. R. Crim. P. 24(c)(2)(A)

justices and judges— 

oath of office 28 U.S.C. § 453

authority to administer oaths 28 U.S.C. § 459
Section 7.08: Oaths

272 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

magistrate judge—

oath of office 28 U.S.C. § 631(g)

authority to administer oaths 28 U.S.C. § 636(a)(2)

master— 

may administer oath Fed. R. Civ. P. 53(c)(1)

naturalization proceedings— 

oath of allegiance 8 U.S.C. § 1448(a)

perjury 18 U.S.C. §§ 1621 and 1623

public officer— 

oath of office 5 U.S.C. § 3331

authority to administer 5 U.S.C. § 2903

reporter— 

to take oath 28 U.S.C. § 753(a)

waiver of oath Wilcoxon v. United States,

231 F.2d 384 (10th Cir. 

1956)

witness— 

required to take oath Fed. R. Evid. 60
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 273

Appendix: FJC publications

The Federal Judicial Center publishes numerous manuals, reference works, 

and monographs on substantive legal topics, including patent, copyright, securities, and admiralty law. It also publishes research reports on criminal litigation and the sentencing process, civil litigation, case management, the 

history of the federal court system, and federal judicial administration. The 

Center sends selected publications to new circuit and district judges upon 

their nomination and to new bankruptcy and magistrate judges upon their 

appointment. Listed below are publications sent to new district judges.

 The Center also has a wide collection of media programs, including Center-produced audio and video programs and commercially produced instructional programs. Many judges find particularly helpful the audio recordings of 

presentations at Center seminars and workshops. 

All Center publications and media programs can be found and ordered 

through FJC Online, the Center’s site on the judiciary’s intranet at 

http://cwn.fjc.dcn. Most publications can also be downloaded from the site, 

and a growing number of media programs are available in streaming audio 

and video formats.

Publications sent to new district judges (by topic) 

Civil litigation and case management

Awarding Attorneys’ Fees and Managing Fee Litigation, Second Edition 

2005 (162 pp.)

This monograph explains the doctrinal and case-management aspects of fee 

awards. It analyzes the law of attorneys’ fee awards under fee-shifting statutes, the common fund doctrine and its offspring, and the substantial benefit doctrine, and it addresses an issue of special significance to bankruptcy 

courts—the propriety of sua sponte review of fee petitions. It also presents a 

selection of case-management strategies, based on interviews with judges, 

attorneys, U.S. trustees, and others.

Capital § 2254 Habeas Cases: A Pocket Guide for Judges

2012 (28 pp.)

This pocket guide provides a basic overview of the issues judges can expect

to face when assigned a capital habeas case. It begins with appointment of 

counsel, budgeting concerns, and stays of execution. It then summarizes the 

primary procedural considerations that affect habeas cases—successive petitions, petition timeliness, exhaustion of state remedies, procedural default, 

and amending a petition. The guide also addresses substantive considerations for case resolution, evidentiary development, and briefing procedures. 
Appendix: FJC publications

274 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Finally, the guide highlights some of the issues that often arise prior to an 

execution.

Civil Litigation Management Manual, Second Edition 

2010 (220 pp.)

The Civil Litigation Management Manual provides trial judges with a handbook on managing civil cases. It sets out a wide array of case-management 

techniques, beginning with early case screening and concluding with steps 

for streamlining trials and final disposition. It also discusses a number of 

special topics, including pro se and high visibility cases, the role of staff, and 

automated programs that support case management. This new edition incorporates statutory and rules changes and contains updated advice on electronic case management, electronic discovery, and ways of containing costs 

and expediting cases. The manual, which was produced and is periodically

updated pursuant to a requirement set forth in the Civil Justice Reform Act 

of 1990, is based on the experiences of federal district and magistrate judges 

and reflects techniques they have developed. It was prepared under the direction of the Judicial Conference Committee on Court Administration and 

Case Management, with substantial contributions from the Administrative 

Office of the U.S. Courts and the Federal Judicial Center, and was approved 

by the Judicial Conference in March 2010. This new edition supersedes the 

first edition (2001) and the Manual for Litigation Management and Cost and 

Delay Reduction (1992). Note: Appendices A and C of the manual, including 

sample procedures and guidelines, orders, and other materials, are only 

available on line and are not included in the published manual.

Compensatory Damages Issues in Patent Infringement Cases: A Pocket Guide 

for Federal District Court Judges

2011 (43 pp.)

This is a guide for trial judges to consult when deciding issues of compensatory damages in patent infringement cases. It was prepared by a national 

committee of experts from the bench, bar, in-house counsel, and academia 

formed at the request of the chief judge of the U.S. Court of Appeals for the 

Federal Circuit.

The Elements of Case Management: A Pocket Guide for Judges, Second Edition

2006 (22 pp.)

This is a primer for judges on techniques and methods of case management. 

Guide to Judicial Management of Cases in ADR

2001 (193 pp.)

This publication offers guidance to federal trial and bankruptcy courts on 

when and how to refer appropriate cases to ADR and how to manage cases 

referred to ADR. The purpose of the guide is not to advocate ADR use, but to 
Appendix: FJC publications

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 275

present various approaches that judges and parties may choose to follow 

when considering and using ADR. The guide identifies areas where there 

may be disagreement, describing advantages and disadvantages of various 

approaches. It also alerts readers to emerging trends or what are perceived 

by many as preferred approaches. 

Managing Class Action Litigation: A Pocket Guide for Judges, Third Edition

2010 (55 pp.)

This pocket guide is designed to help federal judges manage the increased 

number of class action cases filed in or removed to federal courts as a result 

of the Class Action Fairness Act of 2005 (CAFA). It includes a section on determining federal jurisdiction that incorporates case-management practices 

and judicial interpretations of CAFA. It also includes suggestions for judicial 

review and administration of class settlements, especially regarding the disclosure of claims rates and actual payments to class members. This third edition includes an expanded treatment of the notice and claims processes. Revisions are concentrated in Parts III and IV.

Manual for Complex Litigation, Fourth Edition

2004 (798 pp.)

The Manual for Complex Litigation describes approaches that trial judges 

have found useful in managing complex cases. This edition updates the 

treatment of electronic discovery and other aspects of pretrial management. 

It also describes major changes in the substantive and procedural law affecting case management in mass tort, class action, intellectual property, employment discrimination, and other types of litigation. A new chapter deals 

with managing scientific evidence. 

Patent Case Management Judicial Guide

2009 (650 pp., currently available on-line only; new edition in progress) 

This is a comprehensive, user-friendly, and practical judicial guide for managing patent cases. Although similar in many respects to other forms of 

complex civil litigation, patent cases pose distinctive case-management 

challenges, including complex and dynamic technological facts rarely encountered in most other areas of litigation, and unique procedures (such as 

claim construction hearings) that affect and interact with other aspects of 

the case (such as summary judgment motions and expert reports). In addition, patent cases often entail distinctive and difficult discovery issues, extensive use of experts, and complex dispositive and pretrial motions practice. The authors surveyed federal judges and describe their approaches and 

best practices for these and other aspects of patent case management. 
Appendix: FJC publications

276 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Section 1983 Litigation, Second Edition

2008 (239 pp.)

Section 1983 Litigation analyzes the fundamental issues that arise in litigation under 42 U.S.C. § 1983, and the case law interpreting those issues. This 

edition contains new sections on jury instructions and the Rooker-Feldman 

Doctrine, new material on retaliatory prosecutions, and expanded coverage 

on jurisdiction. Research for this edition concluded with the October 2007 

Supreme Court Term and covers courts of appeals decisions reported 

through June 30, 2008.

Ten Steps to Better Case Management: A Guide for Multidistrict Litigation 

Transferee Judges

2009 (20 pp.)

This guide is intended to help judges to whom an MDL case has been transferred. Congress created the Judicial Panel on Multidistrict Litigation under 

28 U.S.C. § 1407 and gave it the responsibility to transfer “civil actions involving one or more common questions of fact” from multiple districts to 

any single district for coordinated or consolidated pretrial proceedings. The 

Panel centralizes cases in order to promote the convenient, just, and efficient conduct of the actions. After the Panel transfers cases under § 1407, it 

exercises virtually no further control over them.

Criminal litigation and sentencing

The Bail Reform Act of 1984, Third Edition

2006 (78 pp.)

This monograph provides a summary of appellate court decisions that interpret provisions of The Bail Reform Act of 1984 on issues of release and detention. This third edition primarily addresses areas that have been changed by 

statute or case law since the second edition, and cites more recent cases that 

discuss the substantive issues through June 1, 2006. In addition, the monograph covers practical considerations regarding conditional release, release 

orders, detention hearings, and waiver. It also includes new material on how 

the Crime Victims’ Rights Act of 2004 affects proceedings under The Bail Reform Act. 

The Crime Victims’ Rights Act of 2004 and the Federal Courts

2008 (31 pp.)

The Crime Victims’ Rights Act (CVRA), effective Oct. 30, 2004, and mainly 

codified at 18 U.S.C. § 3771, expands the rights of federal crime victims and 

the role of federal judges in enforcing those rights. This paper provides an 

overview of key provisions of the CVRA; notes on the CVRA’s potential application at various stages of criminal proceedings, keyed to relevant sections 

of the Benchbook for U.S. District Court Judges; potential issues that may 
Appendix: FJC publications

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 277

arise under the CVRA; summaries of cases applying the CVRA; and the text of 

§ 3771.

Manual on Recurring Problems in Criminal Trials, Sixth Edition 

2010 (101 pp.)

This manual outlines the law governing many of the specific issues and procedural matters that arise frequently in criminal trials. This sixth edition 

added new material and revised the organization and format to enhance usability. Among the topics covered are pro se representation, jury-related 

matters, disclosure, evidentiary issues, contempt, confessions, and multiple 

defendants. Circuit splits are also noted. The manual has been updated to 

include cases decided during the Supreme Court’s October 2009 Term, and 

district and appellate case summaries through July 1, 2010.

Ethics and Codes of Conduct

Judicial Disqualification: An Analysis of Federal Law, Second Edition 

2010 (140 pp.)

Judicial Disqualification outlines the statutory framework of federal judicial 

disqualification law under 28 U.S.C. §§ 455, 144, 47, and 2106. The monograph substantially revises and expands on the first edition, and analyzes the 

case law, with a focus both on substantive disqualification standards and 

procedural requirements. It features a revised organizational structure and 

includes new material, as well as updated cases.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks, Third 

Edition

2012 (36 pp.) 

This pamphlet provides an overview of law clerks’ ethical obligations as well 

as resources they can consult for further information. It covers topics such as 

confidentiality, conflicts of interest, political activities, online activities, and 

gifts, and it includes examples that illustrate challenges law clerks may face. 

It also has an Ethics Checklist for Federal Judicial Law Clerks, which helps 

law clerks identify ethics problems that may arise.

Federal judicial administration

Deskbook for Chief Judges of U.S. District Courts, Third Edition

2003 (138 pp.) 

(Sent to chief judges only)

A detailed reference for chief judges of federal district courts, the Deskbook

describes the position of chief judges within the system of federal judicial 

administration as well as their specific roles and responsibilities with respect 

to national and regional bodies of judicial administration; other judges, officers, and employees of the district court; various functions of the court; and 

external groups such as the bar, the media, and the public. It includes cita-
Appendix: FJC publications

278 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

tions to statutory requirements and Judicial Conference and Administrative 

Office policies. 

A New Judge’s Introduction to Federal Judicial Administration 

2003 (20 pp.)

This brief pamphlet describes the major agencies that administer the federal 

courts on the national, regional, and local levels and summarizes their primary functions. It covers, for example, the circuit judicial councils, the circuit conferences, the Judicial Conference of the United States and its committees, the Administrative Office of the U.S. Courts, and the Federal Judicial 

Center. 

General references

Benchbook for U.S. District Court Judges, Sixth Edition

2013

An ongoing compilation of information that federal district judges have 

found useful for immediate bench or chambers reference, the Benchbook

contains sections on such topics as assignment of counsel, taking guilty 

pleas, sentencing procedure, standard voir dire questions, and contempt 

proceedings. It is prepared under the guidance of experienced district judges 

and is produced in loose-leaf format for easy supplementation. 

Conducting Job Interviews: A Guide for Federal Judges

1999 (29 pp.)

This guide describes an interviewing process that is simple, effective, and 

fair and gives examples of questions to help determine whether job candidates have the knowledge, skills, and abilities necessary for the position. The 

guide may be helpful to judges as they select law clerks, and to chief judges 

and other judges who are in the process of selecting unit executives. 

Confidential Discovery: A Pocket Guide on Protective Orders

2012 (21 pp.)

Among the reasons that courts issue protective orders in both civil and criminal cases is to keep discovery confidential on a showing of good cause. Experience has proved that confidentiality protective orders grease the wheels 

of discovery in many cases. The protective orders discussed in this pocket 

guide are different from sealing orders that protect the courts’ own records 

and protective orders that protect information from discovery. Among the 

topics addressed here are blanket orders, stipulated orders, and designating 

discovery for attorney eyes only.
Appendix: FJC publications

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 279

A Guide to the Preservation of Federal Judges’ Papers, Second Edition

2009 (89 pp.)

Federal judges’ papers provide an important documentary record of judges’ 

careers and the work of the federal courts. This guide describes how students 

of the federal courts use judges’ papers and offers guidelines for judges’ selection of a repository to house a collection. It also offers recommendations 

for the management of documents in chambers.

Guide to Research in Federal Judicial History

2010 (227 pp.)

This guide describes the records of the federal courts, as well as records of 

Congress and the executive branch, that are relevant to researching federal 

judicial history.

Judicial Writing Manual 

1991 (41 pp.) 

(New edition in progress)

(3 copies, including 2 for law clerks) 

The Center prepared this manual to help judges organize opinions and improve their opinion writing. Drawing on interviews with twenty-four experienced judges, and guided by a board of editors comprising judges, law professors, and writers, the manual offers advice on writing tailored to the needs 

of the federal judiciary.

Keeping Government Secrets: A Pocket Guide for Judges on the State-Secrets 

Privilege, the Classified Information Procedures Act, and Court Security 

Officers

2007 (44 pp.)

Most federal judges come into contact with classified information infrequently, if at all, but when they do, they are faced with the dilemma of how 

to protect government secrets in the context of an otherwise public proceeding. This pocket guide is designed to familiarize federal judges with statutes 

and procedures established to help public courts protect government secrets 

when they are called upon to do so. The guide provides information about 

the Classified Information Procedures Act (CIPA), information security officers, and secure storage facilities.

Law Clerk Handbook, Second Edition 

2007 (137 pp.) 

This handbook provides an overview of chambers operations and the work 

of the federal courts. It replaces the Chambers Handbook for Judges’ Law 

Clerks and Secretaries (1994).
Appendix: FJC publications

280 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Managing Discovery of Electronic Information: A Pocket Guide for Judges, 

Second Edition

2012 (48 pp.) 

This pocket guide helps federal judges manage the discovery of electronically stored information (ESI). It encourages judges to actively manage cases 

that involve ESI through early intervention and sustained supervision and to 

use the many tools available to them—case-management conferences and 

orders, limits on discovery, tiered or phased discovery, sampling, cost shifting, and, if necessary, sanctions—to facilitate cooperation among opposing 

lawyers and to ensure that discovery is fair, reasonable, and proportional to 

each case. It covers issues unique to the discovery of ESI, including its scope, 

the allocation of costs, the form of production, the waiver of privilege and 

work product protection, the preservation of data, and spoliation.

Reference Manual on Scientific Evidence, Third Edition

2011 (1034 pp.)

(Published jointly by the National Academy of Sciences© and the Federal 

Judicial Center) 

The Reference Manual on Scientific Evidence assists judges in managing cases involving complex scientific and technical evidence by describing the 

basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been 

used.

Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability, and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and 

what is not. Instead, it serves to help judges identify issues on which experts 

are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.

Sealing Court Records and Proceedings: A Pocket Guide

2010 (26 pp.)

Court case records and proceedings are presumptively public, but occasionally there are compelling reasons for keeping all or parts of them confidential, sometimes permanently but often only temporarily. This pocket guide 

summarizes the case law on sealing records and proceedings and presents a 

useful procedural checklist of seven principles to follow when denying public access.
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 281

Index 

ACQUITTAL 

by reason of insanity, competency after, 51, 54–55

motion for judgment of, 79, 105–06

ADMISSIONS 

delinquency proceedings 

determining awareness of consequences of admission, 46 

taking admission or denial, 47 

voluntariness of admission, 47 

prior convictions, 129 

revocation of probation or supervised 

release, 140–41

AFFIRMATION 

in lieu of oath, 265, 271 

ALIENS 

naturalization proceedings, 259 

oath, 259–60, 269–70

see also FOREIGN NATIONALS 

ALLEGIANCE, OATH, 259–60, 269–70

ANONYMOUS JURIES 

jury selection, criminal, 87–88

APPEAL 

notice of right at sentencing, 135–36

waiver of right, 70, 135–36

APPEARANCES 

criminal proceedings, defendant’s 

initial appearance, 1–2 

delinquency proceedings, 42 

offenses committed in another district, 

15–16

ARRAIGNMENT 

adult offenders, 27–28

Crime Victims’ Rights Act, 27 

juveniles, 44–48

by magistrate judge, 60 

offenses committed in another district, 

15–16

pleas, 28 

video teleconference, 27 

ARREST 

bench warrants, arrest for failure to 

appear, 20–21

ARREST OF JUDGMENT 

motion for, 107–08

ASSIGNMENT OF COUNSEL 

see RIGHT TO COUNSEL 

ATTORNEYS 

assignment of counsel 

see RIGHT TO COUNSEL 

oath, 265 

standby counsel for pro se defendant, 7 

see also JOINT REPRESENTATION OF 

CODEFENDANTS 

BAIL, SETTING 

bail inquiry, 10–11

commitment to another district, 19 

delinquency proceedings, 42 

findings, 11–13

initial appearance by defendant, 2 

magistrate judge role, 60 

preliminary questions, 9 

pretrial detention, 13 

release or detention 

after imposition of sentence, 109–

10 

pending appeal, 110–12 

pending sentencing, 72 

removal proceedings, 19 

secured or surety bond, 11 

setting conditions, 11–13

temporary detention, 12 

BAILIFFS, OATH, 265–66

BATSON CHALLENGES, 85–86, 211–12

BENCH WARRANTS 

arrest for failure to appear in another 

district, 20–21

BONDS, SURETY 

bail, 10–11

preliminary injunction, 243 

temporary restraining orders, 241 

BRADY V. MARYLAND

see EXCUPATORY INFORMATION, 

DISCLOSURE OF 

BURDEN OF PROOF 

contempt, 233 

grant of immunity, 156 

invoking the Fifth Amendment, 153–54

jury instructions 

capital cases, 116–17
Index 

282 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

BURDEN OF PROOF (continued)

jury instructions (continued)

civil proceedings, 216, 220 

criminal proceedings, 93–94, 98 

revocation of probation or supervised 

release, 141 

CAPITAL OFFENSES 

indictments, waiver precluded, 23 

see also DEATH PENALTY 

PROCEDURES 

CASE MANAGEMENT 

see CIVIL CASES 

CITIZENSHIP 

naturalization proceedings, 259 

oath, 259–60, 269–70

CIVIL CASES 

case management, 189–204

discovery 

issues, 195–97

planning, 190–91

final pretrial conference, 199–204

initial conference, 190–92

judge’s role, 189–90

ongoing, 197–99

Rule 16 conference and orders, 

192–97 

settlement or ADR, 197 

findings of fact and conclusions of law, 

207–09

generally, 189–228 

jury instructions 

end of case, 219–22

preliminary, 215–18 

jury selection, 211–12

referrals to magistrate judges, 227–28 

trial outline, 205–06

verdict, 223–24

voir dire questions, 213–14

CLERKS OF COURT 

oath, 265 

CLOSED HEARINGS, MOTIONS 

decision by court, 261, 262 

delinquency proceedings, 41 

findings and order, 262–63

hearing, 261 

notice of motion, 261 

sealed order, 263 

COMMITMENT TO ANOTHER DISTRICT 

arrest for failure to appear, 20 

Crime Victims’ Rights Act, 17, 19, 21 

foreign nationals, consular notification, 17 

hearings, 19, 20 

probationer or supervised releasee, 

19–20

release or detention of defendant, 19 

removal proceedings, 17 

setting bail, 19 

COMPETENCY 

defendants 

arraignment, 27 

joint representation of codefendants, 30 

mental competency, 51 

after acquittal for insanity, 54–55

bearing on sentence, 55–56

to be sentenced, 55 

civil commitment, 57 

to commit crime charged, 53–54

to plead guilty, 53 

to stand trial, 51–53

waiver of indictment, 23 

waiver of jury trial, 33–35

juveniles, 45–46, 56 

delinquency proceedings, 51 

CONCLUSIONS OF LAW AND FINDINGS 

OF FACT 

civil proceedings 

conclusions and findings made 

from bench, 208 

conclusions not required, 207–08

conclusions required, 207 

dispositive motions, 207–08

form and substance, 208–09

adopting conclusions and findings submitted by counsel, 208 

from bench, 208 

if opinion or memorandum filed, 

208

length and style of opinion, 208–

09

preliminary injunction, 243 

stipulations, 208 

temporary restraining order, 240 
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 283

CONCLUSIONS OF LAW AND FINDINGS 

OF FACT (continued)

civil proceedings (continued)

judgment on partial findings, 207 

magistrate judges, proposed findings, 228 

stipulations, 208 

voluntary dismissal, 207 

criminal proceedings 

form, 83 

plea taking 

defendant, 71–72

organization, 76 

release or detention pending trial, 

11–13

sentencing, 129–34

waiver of jury trial, 35 

when required, 83 

delinquency proceedings, 47–48

magistrate judge, referral of criminal 

matters to, 59–61

CONFIDENTIALITY 

closed hearings, 261–63 

grand jury, 254 

CONFLICTS OF INTEREST 

see JOINT REPRESENTATION OF 

CODEFENDANTS 

CONSULAR NOTIFICATION 

see FOREIGN NATIONALS, RIGHT TO 

CONSULAR NOTIFICATION 

CONTEMPT 

civil contempt 

background, 235 

burden of proof, 236 

controlling statute and rule, 235 

procedure, 236–37

recalcitrant witnesses, 155–58

right to counsel, 236 

right to trial, 236 

criminal contempt 

background, 229 

behavior not observed by court, 

232–34

behavior personally observed by 

court, 230–32

controlling statute and rule, 229 

disposition upon notice and hearing, 229–30 

CONTEMPT (continued)

criminal contempt (continued)

order, 230, 232 

procedures, 230–34

punishment, 231–32, 233–34

recalcitrant witnesses, 155–58

right to counsel, 231, 233

right to trial, 230, 233–34

summary disposition, 230–32

CORPORATIONS 

see ORGANIZATIONS 

COUNSEL 

see RIGHT TO COUNSEL 

CRIERS (BAILIFFS) 

oath, 265–66 

CRIME VICTIMS’ RIGHTS ACT 

arraignment, 27 

assignment of counsel, 5 

death penalty, 113, 119 

exclusion of witnesses from courtroom, 

79

initial appearance, 1 

joint representation of codefendants, 

29

jury selection, 85 

mental competency of defendant, 51, 

57

motions, trial and post-trial, 105

offense committed in another district, 

15

pleas 

defendant, 27, 63–64, 71, 72 

organization, 75, 76, 77 

release or detention pending sentence 

or appeal, 109, 111 

release or detention pending trial, 9, 

10

removal proceedings (commitment to 

another district), 17, 19, 21

revocation of probation or supervised 

release, 139–40

sentencing, 127, 132 

speedy trial, 37, 38, 40 

trial, 79 

verdict, criminal, 101, 102

voir dire, 89 

waiver of indictment, 23, 25 

waiver of jury trial, 33 
Index 

284 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

CRIMINAL CASES 

findings of fact and conclusions of law, 

83

jury instructions 

end of case, 97–100 

preliminary, 93–96

jury selection, 85–88

mistrial, motion for, 161–62

plea taking 

defendant, 63–73

organization, 75–77

pretrial, 1–62

release or detention pending sentence 

or appeal, 109–12 

revocation of probation or supervised 

release, 139–43

sentencing 

death penalty, 113–24

generally, 125–37

see also SENTENCING 

special trial problems, 145–88

trial and post-trial motions, 105–08

trial outline, 79–81 

verdict, 101–03

voir dire questions, 89–91

DEATH PENALTY PROCEDURES 

after verdict or plea, 118–22

aggravating factors, 115, 118–21

certification of unbiased decision, 

119, 124 

exhibits, use of, 119 

findings, 119–22 

form, 123–24

generally, 113–24

hearing, 119 

jury 

“death-qualifying” questions, 

117

discharging alternates, 118, 121 

excusing jurors, 117 

impaneling, 115–17

instructions to, 118–21 

sentencing form for, 123–24

verdict, 122 

mitigating factors, 116–17, 120–21

sentencing, 122 

form, 123–24

trial transcript, use of, 119 

DEATH PENALTY PROCEDURES 

(continued)

before and during trial, 113–18

appointment of counsel, 114–15 

jurors 

alternates, 118, 121

excusing for cause, 117 

explanation of decision process 

to, 115–17

selection, 117 

voir dire, 117 

notice of intent to seek death penalty, 115 

Crime Victims’ Rights Act, 113, 119 

form for sentencing findings, 123–24

DEFENDANTS 

allocution at sentencing, 55, 132, 141 

appearances, initial, 1–2 

arraignment, 27–28

bail 

see RELEASE OR DETENTION and

BAIL, SETTING 

capital cases 

see DEATH PENALTY PROCEDURES 

commitment to another district, 17–21 

competency 

see COMPETENCY 

conflicts of interest 

see JOINT REPRESENTATION OF 

CODEFENDANTS 

counsel, assignment of, 5–7 

criminal contempt, 229–34

disruptive or dangerous behavior, 145–

49

exclusion or removal from courtroom, 

145–46

exculpatory information disclosure, 

163–88

extradition, 257 

foreign nationals, consular notification, 1 

indictment, waiver of, 23–25

initial appearance, 1–2 

joint representation of codefendants, 

29–32

juveniles 

see DELINQUENCY PROCEEDINGS 

mental competency, 51–57
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 285

DEFENDANTS (continued)

motions 

for mistrial, 161–62

trial and post-trial, 105–08

oath, 64 

re financial ability to employ counsel, 266 

offense committed in another district, 

15–16

pleas 

defendants, 63–73

organizations, 75–77

see also PLEAS 

pro se representation, 5–7 

probation 

see REVOCATION OF PROBATION 

OR SUPERVISED RELEASE 

release or detention 

see RELEASE OR DETENTION 

removal from courtroom, 145–46

removal proceedings, 17–21

see also COMMITMENT TO 

ANOTHER DISTRICT 

restraint of, 146–49

right to compel production of documents from witnesses, 70 

right to counsel 

see RIGHT TO COUNSEL 

right to trial, 70 

sentencing, 125–37

“shackling,” 146–49

Speedy Trial Act, 37–40

supervised release 

see REVOCATION OF PROBATION 

OR SUPERVISED RELEASE 

waiver of counsel, 6–7 

waiver of jury trial 

form, 36 

generally, 33–36

preliminary questions of defendant, 

34–35

DELINQUENCY PROCEEDINGS 

admissions 

determining awareness of consequences of admissions, 46 

taking admission or denial, 46–47 

voluntariness of admission, 46–47

arraignment of juvenile, 41–45

DELINQUENCY PROCEEDINGS 

(continued)

calendar of events, 50 

closed hearings, 41 

competency of juveniles 

generally, 56 

to make admission, 45–46

detention prior to disposition, 48 

disposition 

hearing, 48–49

judgment following hearing, 48–49

observation and study, 49 

options of court, 48–49

sentence, 49 

timing of hearing, 48 

under Federal Juvenile Delinquency Act, 43 

electing to proceed as adult or juvenile, 43–44

findings, 47–48

hearing, 44–49

indictment, 42 

information, 42 

jurisdiction of court, 41 

Juvenile Delinquency Act, 43 

juvenile records, 48 

mental competency, 56 

preliminary procedures, 41–42

proceeding as adult 

mandatory, 44 

motion by Attorney General, 44 

record of proceedings 

findings for the record, 47–48

juvenile records, 48 

rights of adults, 42

rights of juveniles, 42 

sentence, 49 

time limits 

calendar of events, 50 

hearings, 48 

trial by jury, 42, 46 

DEPARTURES 

see SENTENCING, sentencing 

procedure 

DEPOSITIONS 

oath, 267 

DEPUTY CLERKS OF COURT

oath, 265 
Index 

286 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

DETENTION 

see RELEASE OR DETENTION 

DISCOVERY 

see CIVIL CASES, case management 

DISRUPTIVE OR DANGEROUS 

DEFENDANT 

exclusion or removal from courtroom, 

145–49

pro se defendant, 146, 147

restraint (“shackling”), 146–49

EVIDENCE 

burden of proof, jury instructions 

civil proceedings, 215–16 

criminal proceedings, 93–94

grand jury 

hearsay testimony, 251 

oral testimony of witnesses and 

written documents, 250–51

EXCLUDING PUBLIC FROM COURT 

PROCEEDINGS 

burden of proof, 261 

closure upon court’s motion, 261 

decision by court, 262 

findings and order, 262–63

hearing, 261 

notice, 261 

EXCULPATORY INFORMATION, 

DISCLOSURE OF 

(Brady material) 

Department of Justice policy, 180 

disputed disclosure, 177 

duty to disclose, 164–166

disclosure favored, 166 

in general, 164–65

information from law enforcement, 

165

ongoing duty, 165 

elements of a violation, 166–71

favorable to accused, 166 

materiality, 168–71

suppression, 167–68

examples of disclosable material, 181–

88

protective orders, 178 

survey of court rules, 179 

timing of disclosure, 171–77

effective use at trial, 171–72

Jencks Act, 174–76

EXCULPATORY INFORMATION, 

DISCLOSURE OF 

(Brady material) (continued)

timing of disclosure (continued)

materiality, 168–71

prior to guilty plea, 172–73

supervisory authority of court, 176–

77

untimely disclosure, remedies, 173–

74

EXTRADITION 

magistrate judge role, 62 

procedure, 257 

FIFTH AMENDMENT 

procedure when invoked by witness, 

153–54

recalcitrant witnesses, invalid claim, 

155–58

FINDINGS OF FACT 

see CONCLUSIONS OF LAW AND 

FINDINGS OF FACT 

FINES 

civil contempt, 237 

criminal contempt, 231–34

sentencing, 130, 134 

FOREIGN EXTRADITION PROCEEDINGS, 

257

FOREIGN NATIONALS 

possible consequences of guilty plea, 

67

removal proceedings (commitment to 

another district), 17 

right to consular notification after 

arrest, 1, 17 

FORFEITURE 

final order, 134, 136 

preliminary order after guilty plea, 73 

FORMS 

oaths 

see OATHS 

waiver of indictment, 24–25

waiver of jury trial, 33, 36 

GRAND JURY 

alternates, 245 

charge to jury, 247–55

closed hearings, 254 

deliberations, 251–53
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 287

GRAND JURY (continued)

evidence 

grants of immunity, 151 

oral testimony of witnesses and 

written documents, 250–51

foreperson 

appointment, 247 

duties, 250, 252–53

oath, 267 

hearsay testimony, 251 

independence, 248, 253 

length of term, 245, 255 

nature and duties, 247–49

number of members, 245–46

oath, 247, 267 

opening statement to, 245–46

panel, 245 

powers, limitation on, 248–49

preliminary matters, 245–47

procedures, 249, 251–53

quorum, 245, 248 

secrecy, 254 

selection 

generally, 245–47

and oath, 247 

special grand jury, 245, 255–56

tasks and procedures, 249 

term, 245, 255 

U.S. attorney, role of, 249, 250, 253, 256 

voir dire, 246–47

voting, 251–53

witnesses, 250–51

assistance of counsel, 250 

grants of immunity, 151 

questioning, 250 

recalcitrant witnesses, 157–58

GRANTS OF IMMUNITY, 151 

GUILTY PLEAS 

mental competency, 53 

offenses committed in another district, 

16

preliminary order of forfeiture, 73 

taking plea 

defendants, 63–73

organizations, 75–77

see also PLEAS 

HEARINGS 

arraignment, 27–28

closed, 41, 261–63 

commitment to another district 

(removal), 17–21

contempt 

civil, 235–37

criminal, 229–34

recalcitrant witness, 155–58

death penalty cases, 118–19

extradition proceedings, 257 

identity, 18–20

juveniles, 44–49, 56 

mental competency, 52–53

offense committed in another district, 

15–16

plea, 63–73, 75–77

preliminary injunctions, 241–43

release or detention pending sentence 

or appeal, 109–12

release or detention pending trial, 9–

13

revocation of probation or supervised 

release, 140–43

temporary restraining order, 239–41

waiver of indictment, 23–25

waiver of jury trial, 34–35

waiver of right to counsel, 6–7 

HEARSAY TESTIMONY, 

before grand jury, 251 

IMMIGRATION 

naturalization proceedings, 259–60

IMMUNITY, GRANTS OF, 151 

INDICTMENTS 

delinquency proceedings, 42–43, 46 

finding and order, 24–25

right to counsel, 23 

Speedy Trial Act, time limit for filing 

indictment, 38 

waiver, 23–25

offense committed in another 

district, 16 

INFORMATION 

delinquency proceedings, 42, 43 

Speedy Trial Act, time limit for filing, 

38
Index 

288 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

INITIAL APPEARANCE 

consular notification, 1 

Crime Victims’ Rights Act, 1 

in criminal proceedings, 1–2 

offenses committed in another district, 

15

video teleconference, 1 

INJUNCTIONS, 239–43

see also PRELIMINARY INJUNCTIONS 

and 

TEMPORARY RESTRAINING ORDERS 

INSANITY 

mental competency in criminal matters, 51–57

notification of defense, 53 

INSTRUCTIONS 

see JURY INSTRUCTIONS 

INTERPRETERS 

appointment of certified interpreters, 

1, 5, 9, 15, 17, 23, 27, 30, 34, 41–42, 63–

64, 250 

in grand jury room, 250, 252, 254 

at initial appearance, 1 

interpreter for deaf juror, 268 

oath, 268, 271 

INVOKING THE FIFTH AMENDMENT 

procedures, 153–54

recalcitrant witnesses, 155, 157 

JOINT REPRESENTATION OF 

CODEFENDANTS 

competency, determining, 32 

Crime Victims’ Rights Act, 29 

disadvantages, 30–31

hearing, 29 

independent pretrial investigations, 

30

pretrial, 29–32

sentencing, 31 

trial, 31 

waiver, 32 

JUDGES, OATH, 270 

JUDGMENTS 

acquittal, motion for, 105–06

arrest of judgment motion, 107–08

civil verdicts, 223–25 

revocation of probation or supervised 

release, 143

JUDGMENTS (continued)

sentencing, entry of, 136–37

JURISDICTION 

delinquency proceedings, 41 

offense committed in another district, 

15

removal proceedings, 20 

see also VENUE 

JURORS 

alternate jurors, 80, 115, 118, 121 

grand jurors 

see GRAND JURY 

oath, 269, 271 

polling the jury 

civil case, 206, 223–25

criminal case, 81, 101–02

see also JURY SELECTION and VOIR 

DIRE 

JURY INSTRUCTIONS 

civil proceedings 

applicable law, summary of, 216 

avoiding outside information, 216–

17, 221 

burden of proof, 216, 220 

conduct of jury, 216–18

course of trial, 218 

deadlocked jury, 205 

deliberation, 220–21 

duty of jury, 215, 220 

evidence, 215–16, 220 

general instructions to jury at end 

of case, 219–21 

law of circuit, 220 

note taking, 217–18 

preliminary instructions, 215–18 

settling upon court’s instructions to 

jury, 219–20 

social media and technology, use of, 

216–17, 221 

transcript of, 222 

verdict, 220 

criminal proceedings 

applicable law, summary of, 94, 98 

avoiding outside information, 94–

95, 99–100

burden of proof, 94, 98 

conduct of jury, 94–96

course of trial, 96 
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 289

JURY INSTRUCTIONS (continued)

criminal proceedings (continued)

deadlocked jury, 80 

deliberations, 98–100

duty of jury, 93, 98

evidence, 93–94, 98 

foreperson, selection and duty, 98 

general instructions at end of case, 

97–100 

jury procedure, 98–100

note taking, 95–96

preliminary instructions, 93–96

rules for criminal cases, 94 

settling upon court’s instructions to 

jury, 97 

social media and technology, use of, 

94–95, 99–100

verdict, 99 

written copy or transcript of, 97, 100 

JURY SELECTION 

capital cases 

see DEATH PENALTY PROCEDURES 

civil proceedings, 211–12

peremptory challenges (Batson), 

211–12

voir dire, 213–14

Crime Victims’ Rights Act, 85 

criminal proceedings, 85–88

alternate jurors, 80, 115, 118, 121 

anonymous juries, 87–88

peremptory challenges (Batson), 

85–86

voir dire, 89–91

JURY TRIAL 

communications during deliberation, 

80, 205

trial outline 

civil, 205–06

criminal, 79–81

waiver, 33–35

form, 36 

hearing, 34–35

JUSTICES AND JUDGES, OATH, 270 

JUVENILE DELINQUENCY ACT 

closed hearings, 41 

delinquency proceedings 

see DELINQUENCY PROCEEDINGS 

disposition under, 43 

MAGISTRATE JUDGES 

oath, 270 

referring civil matters to, 227–28 

referring criminal matters to, 59–62

MASTERS, OATH, 269 

MENTAL COMPETENCY, CRIMINAL 

MATTERS, 51–57

acquittal by reason of insanity, 54–55

bearing on sentence, 55–56

civil commitment, 57 

Crime Victims’ Rights Act, 51, 56 

to be sentenced, 55 

to commit the crime charged, 53–54

to plead guilty, 53 

to stand trial, 51–53 

MINORS, DELINQUENCY PROCEEDINGS 

see DELINQUENCY PROCEEDINGS 

MOTIONS 

civil 

dispositive motions, 207–08

findings of fact and conclusions of 

law, 207–09

form and substance, 208–09

judgment on partial findings, 207 

preliminary injunction, 241–43

temporary restraining order, 239–

41

voluntary dismissal, 207 

criminal 

acquittal, 105–06

arrest of judgment, 107–08

closed hearings, 261–63

Crime Victims’ Rights Act, 105 

grant of immunity, 151 

mistrial, 161–62

new trial, 106–07

NATURALIZATION PROCEEDINGS 

oath, 259–60, 269–70

procedure, 259–60

NEW TRIAL, MOTION FOR, 106–07

NOLO CONTENDERE 

court’s discretion in accepting plea, 71

offenses committed in another district, 

16

taking plea 

defendants, 64–73

organizations, 75–77
Index 

290 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

NOTICE 

closed hearings, motion to exclude 

public, 261

contempt proceedings, 229, 231, 232–

33, 235–36

death penalty sought, 115 

aggravating factors, 119 

departure, 127 

insanity defense, 53–54

juvenile transfer hearing, 44 

preliminary injunction, 241 

preliminary order of forfeiture, 73 

prior conviction, 129 

removal of defendant from courtroom, 

145

sentence, right to appeal, 135–36

temporary restraining order, 239–41 

victims of fraud offense, 69, 76 

OATHS 

affirmation in lieu of, 265 

allegiance, 259–60, 269–70

attorneys, 265 

clerks and deputies, 265 

criers (bailiffs), 265–66

defendants, ability to pay for counsel, 

266

depositions, 267 

grand jury, 267 

foreperson, 267 

guides, 266 

interpreters, 268 

for deaf jurors, 268 

jurors, 268–69 

justices and judges, 270 

magistrate judges, 270 

masters, 269 

public officials, 270 

reporters, 269 

stenographers, 269 

table of authorities, 271–72 

venirepersons, 268 

witnesses, 269 

OFFENSE COMMITTED IN ANOTHER 

DISTRICT 

consent colloquy, 15–16

Crime Victims’ Rights Act, 15 

preliminary procedure, 15 

OPINIONS 

findings of fact and conclusions of law 

civil cases, 207–09

criminal cases, 83 

ORDERS 

closed hearings, 262–63

commitment to another district (order 

of removal), 19, 21 

contempt proceedings, 232, 237 

grants of immunity, 151 

preliminary injunction, 243 

revocation of supervision, 143 

temporary restraining order, 240

waiver of indictment, 24–25 

ORGANIZATIONS 

pleas of guilty or nolo contendere, 75–

77

right to counsel, 76 

PEREMPTORY CHALLENGES 

Batson challenges, 85–86, 211–12

civil, 211–12

criminal, 85–86

death penalty, additional challenges, 

115

PLEAS 

arraignment, 27–28

Crime Victims’ Rights Act, 27, 63–64, 

71, 72, 75–77

forfeiture, preliminary order, 73 

guilty or nolo contendere, 63–73, 75–

77 

accepting or rejecting a plea, 71–72, 

129–30

Alford plea, 71 

competence of defendant to plead, 

53, 64–65

maximum penalty, 68–69, 75–76

nature of charges, 70–71, 75 

nolo contendere, 71, 75, 76

offenses committed in another 

district, 15–16

organizations, 75–77

plea agreements, 65–67, 69–70, 76 

deferring acceptance of, 63, 129–

30

duty of defense counsel to communicate formal offers, 66 
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 291

PLEAS (continued)

guilty or nolo contendere (continued)

plea agreements (continued) 

factual stipulations, 65 

ineffective assistance of counsel, 

66

preliminary questions, 64–65

presentence report, 72, 126–27, 

128–29

release or detention pending 

sentencing, 109–12

restitution, 68, 75 

right to counsel, 64 

right to withdraw plea, 66, 71 

Sentencing Guidelines effect, 69 

special assessment, 69 

stipulations, 65 

supervised release, 68 

voluntariness of plea and plea 

agreement, 65–66

waiver of appeal, 69–70, 135 

not guilty plea, 70 

possible consequences of guilty plea, 

67–69

foreign nationals, 67 

mandatory minimum sentence, 68 

sex offenders, 67 

POLLING THE JURY 

see VERDICTS 

POST-TRIAL MOTIONS 

acquittal, 105–06

arrest of judgment, 107–08

new trial, 106–07

PRELIMINARY HEARINGS 

during removal proceeding, 19, 20 

informing defendant of right to, 2, 18 

juvenile defendant, 42 

revocation of probation or supervised 

release proceeding, 140 

see also HEARINGS 

PRELIMINARY INJUNCTIONS 

advance trial on the merits, 242–43

burden of proof, 241–42

decision and findings, 243 

hearing, 241 

notice, 241 

order, 207 

PRELIMINARY INJUNCTIONS (continued)

prehearing, 242 

security, 243 

PRESENTENCE INVESTIGATION 

REPORTS, 63, 72, 126–27, 128–29

PRESUMPTION OF INNOCENCE, 94, 98 

PRETRIAL CONFERENCE 

see CIVIL CASES, case management 

PRETRIAL INVESTIGATIONS 

see JOINT REPRESENTATION OF 

CODEFENDANTS 

PROBATION 

see REVOCATION OF PROBATION OR 

SUPERVISED RELEASE 

PRO SE REPRESENTATION 

defendant’s waiver colloquy, 6–7 

right to self-representation, 5–7 

standby counsel, 7 

RECALCITRANT WITNESSES 

before grand jury, 157–58

during trial, 155–57

hearing, 156–57, 158 

right to counsel, 156, 158

sanctions, 155, 167 

RECORD OF PROCEEDINGS 

civil cases and motions, 207–09

criminal cases and motions, 83 

delinquency proceedings, 47–48

preliminary injunction, 243

temporary restraining order, 241 

RELEASE OR DETENTION 

burden of proof, 111 

pending appeal 

Crime Victims’ Rights Act, 109, 111 

by defendant, 110–11 

by government, 111 

pending sentence, 72, 109–12

Crime Victims’ Rights Act, 111 

pending trial, 9–13

bail inquiry, 9–10 

conditions of release, 11–12

Crime Victims’ Rights Act, 9, 10 

findings of fact and statement of 

reasons, 13 

temporary detention, 12 

written order, 13, 111–12

see also BAIL, SETTING 
Index 

292 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

REMOVAL PROCEEDINGS 

see COMMITMENT TO ANOTHER 

DISTRICT 

REPORTERS 

oath, 269 

RETRIAL 

motion for new trial, 106–07

Speedy Trial Act, 37, 38 

REVOCATION OF PROBATION OR 

SUPERVISED RELEASE 

admissions, 141 

allocution, 141 

Crime Victims’ Rights Act, 139–40

denial of alleged violations, 141 

judgment or order, 143 

mandatory revocation, 139, 140, 142, 

143

pre-Guidelines probation, 142 

preliminary hearing, 140 

reimposition of supervised release, 

143

role of magistrate judge, 61, 140 

sentencing options, 141–43

standard of proof, 141 

RIGHT TO APPEAL 

sentence, notice of, 69–70, 135–36

waiver of, 69–70, 135 

RIGHT TO COUNSEL 

arraignment, 27–28

assignment of counsel or pro se representation, 5–7 

commitment to another district, 18 

contempt proceedings, 231, 233, 236 

Crime Victims’ Rights Act, 5 

delinquency proceedings, 42 

financial affidavit, 5 

initial appearance, 1 

joint representation of codefendants, 

29–30, 32 

juveniles, 42 

offense committed in another district, 

15

organizations, 76 

recalcitrant witness, 156, 158 

taking pleas of guilty or nolo contendere, 64 

waiver of, 6–7 

waiver of indictment, 23 

RIGHT TO TRIAL 

contempt proceedings, 229–31, 233, 

235–36

juveniles, 42 

organizations, 76 

taking pleas of guilty or nolo contendere, 70 

waiver of, 33–36

SECURITY 

preliminary injunction, 243 

temporary restraining order, 241 

SELF-INCRIMINATION 

invoking Fifth Amendment, 153–54

recalcitrant witness, 155, 157 

SENTENCING 

allocution by defendant, 132, 141 

consecutive or concurrent sentences, 

127, 133 

contempt 

civil, 236–37

criminal, 231–32, 233–34

recalcitrant witnesses, 155–58

Crime Victims’ Rights Act, 127, 128 

entry of judgment, 136 

hearing, 128–36

judgment forms, 136–37

juvenile cases 

disposition, 48–49

sentence, 49 

misdemeanors, magistrate judge 

authority, 60 

non-guidelines sentence (see 

“variance”) 

pre-Guideline Sentencing revocation 

of probation, 141–42

presentence reports, 72, 77, 126–27

copies of, 137 

information withheld, 129 

revocation of probation, 141–42

revocation of supervised release, 142–

43

sentencing procedure 

allocution, 132 

appeal of sentence 

notice, 135–36

waiver, 70, 135 

calculation of guideline range, 129–

30 
Index 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013) 293

SENTENCING (continued)

sentencing procedure (continued)

departure, 125–26, 130–31, 132 

early disposition, 130 

notice of, 127 

substantial assistance, 130 

entry of judgment, 136 

evidentiary hearing, 128–29

factual disputes, 129 

fine, 134 

forfeiture, 134, 136 

hearing, 128–36

interpreter, 128 

joint representation of codefendants, 31 

judgment, entry, 136 

mental competency, 54–55

notice 

departure, 127 

right to appeal, 135–36

plea agreement, 129–30

prior convictions increase sentence, 129 

probation, 133, 134 

pronouncement of sentence, 132 

release or detention after imposition of sentence, 109–12, 136 

restitution, 134 

special assessment, 130, 135 

statement of reasons, 132, 137 

supervised release, 130, 133–34

transcript or written record, 137 

variance, 126, 127, 131–32, 132–33

victim statement, 128 

waiver of right to appeal, 135 

statement of reasons, 137 

SETTING BAIL 

see BAIL, SETTING 

SEX OFFENDERS 

Possible consequences of guilty plea, 

67

“SHACKLING” OF DEFENDANT 

see DISRUPTIVE OR DANGEROUS 

DEFENDANT, restraint 

SPEEDY TRIAL 

basic time limits, 38 

indictment or information, 38 

retrial, 38 

SPEEDY TRIAL (continued)

basic time limits (continued)

trial, 38 

commencement limitations, 39 

continuance, 39–40

factors to consider, 39 

findings, 39–40

Crime Victims’ Rights Act, 37, 38, 40 

dismissal, 37, 40 

failure to comply with time limits, 

37

waiver by defendant, 37–38

with or without prejudice, 37, 40 

excludable periods, 39–40

STENOGRAPHERS, OATH, 269 

STIPULATIONS, FINDINGS OF FACT, 

CIVIL CASE, 208 

SUPERVISED RELEASE 

see REVOCATION OF PROBATION OR 

SUPERVISED RELEASE 

TEMPORARY RESTRAINING ORDERS 

contents of order, 240 

controlling rule, 239 

expiration, 240 

findings of fact and conclusions of law, 

239

granting without notice, 239 

hearing record, 241 

motion for dissolution after notice, 240 

notice, 239–40

requirements for granting, 239–40

security, 241 

TIME LIMITS 

arrest of judgment motion, 107 

delinquency proceedings 

calendar of events, 50 

hearings, 48 

judgment of acquittal motion, 105 

naturalization proceedings, 259

new trial motion, 106 

speedy trial, 38–39

TRIAL 

civil 

findings of fact and conclusions of 

law, 207–09

jury instructions, 215–18, 219–22

jury selection, 211–12

voir dire, 213–14
Index 

294 BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

TRIAL (continued)

civil (continued)

outline, 205–06

pretrial, 189–204

verdict, 223–25 

criminal 

Crime Victims’ Rights Act, 79 

disruptive or dangerous defendants, 

145–49

Fifth Amendment claims, 153–54

findings of fact and conclusions of 

law, 83 

grants of immunity, 151 

jury instructions, 93–96, 97–100

jury selection, 85–88

voir dire, 89–91

capital cases, 115–17

outline, 79–81

recalcitrant witnesses, 155–58

trial and post-trial motions, 105–08

verdict, 101–03

mental competency to stand, 51–53 

mistrial motion by criminal defendant, 

161–62

new trial, motion for, 106–07

Speedy Trial Act, 38 

TRIAL BY JURY 

delinquency proceedings, 42 

waiver of right, 33–36 

form, 36 

TRIAL OUTLINE 

civil cases, 205–06

criminal cases, 79–81 

VENUE 

offense committed in another district, 

15–16 

removal proceedings, 17, 20 

see also JURISDICTION 

VERDICTS 

civil proceedings 

polling the jury, 206, 223, 224–25

sealed verdicts, 224 

unsealed verdicts, 223 

criminal proceedings 

Crime Victims’ Rights Act, 101, 102 

polling the jury, 81, 101, 102 

sealed verdicts, 102–03

unsealed verdicts, 101–02

VERDICTS (continued) 

jury instructions 

civil proceedings, 215–18, 219–22

criminal proceedings, 93–96, 97–

100 

VOIR DIRE 

anonymous jury, 87–88

by magistrate judge, 61, 228 

capital cases, 117 

Crime Victims’ Rights Act, 85 

grand jury, 246–47

oath, 268 

standard questions 

civil proceedings, 213–14

criminal proceedings, 89–91

WAIVERS 

defendant’s waiver of counsel, 6–7 

foreign extradition proceedings, 

waiver of hearing, 257 

indictment, 16, 23–25 

Crime Victims’ Rights Act, 23, 25 

jury trial, 33–36 

Crime Victims’ Rights Act, 33 

form, 36 

of oath, 272 

of right of appeal, 69–70 

of right to separate counsel, 32 

speedy trial, 37–38

WARRANTS 

bench warrants, arrest for failure to 

appear, 20–21

foreign extradition proceedings, 257 

WITNESSES 

delinquency proceedings, 42 

Fifth Amendment, invoking, 153–54

grand jury, 250–51

grants of immunity, 151 

hearsay testimony, grand jury, 251 

oath, 269 

recalcitrant witnesses, 155–58