How a federal criminal trial works, step by step

A federal criminal trial is where the government must prove every element of a charged crime beyond a reasonable doubt, usually to a jury of 12 people whose verdict must be unanimous. It follows a fixed order: jury selection, opening statements, the evidence, closing arguments, the judge’s instructions on the law, and the jury’s deliberations.

What must the government prove?

The Constitution protects the accused “against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged” (In re Winship, 397 U.S. 358 (1970)). The burden stays on the government from start to finish. The defense does not have to prove anything or call any witnesses.

How does a federal trial unfold?

1. Jury selection. The judge, and often the lawyers, question potential jurors to find people who can be fair. This questioning is called voir dire (Fed. R. Crim. P. 24(a)). Each side can also remove some potential jurors without giving a reason, called peremptory strikes. In a felony case the government has 6 and the defense has 10; in a misdemeanor case each side has 3; and when the government seeks the death penalty each side has 20 (Rule 24(b)). The jury has 12 members unless the parties agree in writing, with the court’s approval, to fewer (Rule 23(b)). The court may also seat up to 6 alternates (Rule 24(c)).
2. Opening statements. Each side may preview what it expects the evidence to show. Opening statements are not evidence.
3. The government’s case. The prosecution calls witnesses and offers exhibits. The Federal Rules of Evidence apply at trial (Fed. R. Evid. 1101(b)).
4. Cross-examination. The Sixth Amendment gives the accused the right “to be confronted with the witnesses against him” (U.S. Const. amend. VI). The defense questions each government witness to test what they said.
5. Motion for a judgment of acquittal. When the government rests, the defense can ask the judge to acquit. The court must enter a judgment of acquittal on any charge for which the evidence is insufficient to sustain a conviction. The judge may also decide the motion later (Fed. R. Crim. P. 29(a), (b)).
6. The defense case. The defense may call witnesses and offer evidence, and the Sixth Amendment gives it the power to compel witnesses to come to court. It may also present no evidence at all.
7. The right not to testify. The accused cannot be forced to be a witness against himself (U.S. Const. amend. V). The prosecutor may not comment on a defendant’s decision not to testify, and the judge may not tell the jury that silence is evidence of guilt (Griffin v. California, 380 U.S. 609 (1965)).
8. Closing arguments and jury instructions. The government argues first, then the defense, and then the government may rebut (Rule 29.1). Either side may ask the judge in writing to give specific instructions on the law. The judge must say before closing arguments how it will rule on those requests, and may instruct the jury before or after the arguments, or both (Rule 30).
9. Deliberation and verdict. The jury deliberates in private. Its verdict is returned in open court and “must be unanimous” (Fed. R. Crim. P. 31(a)). On request, the court must poll the jurors one by one (Rule 31(d)).
10. Motions after the verdict. Within 14 days after a guilty verdict or after the jury is discharged, the defense may move for a judgment of acquittal (Rule 29(c)). A motion for a new trial “if the interest of justice so requires” is due within 14 days, or within 3 years if it is based on newly discovered evidence (Rule 33).

After a guilty verdict, the case moves to sentencing, which our sister site Sentencing.net covers in depth. The defense can appeal a conviction; see federal criminal appeals.

Can you have a trial without a jury?

Yes, but not by the defendant’s choice alone. A trial without a jury, called a bench trial, requires three things: the defendant waives a jury in writing, the government consents, and the court approves (Fed. R. Crim. P. 23(a)). The judge then decides guilt and, if a party asks before the decision, must state specific findings of fact (Rule 23(c)).

What is a mistrial?

A mistrial ends a trial without a verdict. Before ordering one, the judge must give each side a chance to comment, to say whether it consents or objects, and to suggest alternatives (Fed. R. Crim. P. 26.3). The most common reason is a hung jury: a jury that cannot reach a unanimous verdict. The court may declare a mistrial on the counts the jury could not decide, and the government may retry any of those counts (Rule 31(b)(3)). The Supreme Court has held that the failure of a jury to reach a verdict does not end jeopardy, so a retrial after a hung jury does not violate the Double Jeopardy Clause (Richardson v. United States, 468 U.S. 317 (1984)). A juror who must leave during deliberations does not always mean a mistrial: if the court finds good cause to excuse the juror, it may let the remaining 11 return a verdict (Rule 23(b)(3)).

How do pretrial motions shape a trial?

Some issues must be raised by motion before trial. Rule 12(b)(3) lists them: defects in how the prosecution was started (such as improper venue or selective or vindictive prosecution), defects in the indictment, motions to suppress evidence, motions to sever charges or defendants, and discovery requests (Fed. R. Crim. P. 12(b)(3)). A motion to suppress asks the court to keep out evidence the government obtained illegally. If the court grants it, the government generally cannot use that evidence to prove its case. A motion filed after the court’s deadline is untimely, and the court may consider it only if the party shows good cause (Rule 12(c)(3)).

How long until a federal trial starts?

The Speedy Trial Act generally requires trial to begin within 70 days from the later of the indictment or the defendant’s first appearance. Unless the defendant agrees in writing, trial may not begin less than 30 days after the defendant first appears with a lawyer. Many periods are excluded from the 70 days, such as time spent on pretrial motions and continuances a judge finds serve the ends of justice (18 U.S.C. § 3161(c), (h)). Our guide to the federal case process covers the Speedy Trial Act and every stage before trial.

Where does Criminal Center fit?

Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention.

For how a federal case moves from investigation to trial and what a defense lawyer does at each stage, see federal criminal defense. For the laws and penalties behind a specific charge, see our guides to federal charges.

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