By Jay V. Surgent, Esq.
In fiscal year 2018, two percent of federal defendants went to trial. You have decided to be one of them, or the government has left you no choice.
What the Government Has to Do
The government must prove every element of every count beyond a reasonable doubt, to twelve jurors, and all twelve must agree. You have to prove nothing. You do not have to testify, and the judge instructs the jury that it may not hold your silence against you.
That is the structure, and it is why the trial is the thing a prosecutor weighs when he decides what to charge and what to offer. A defense lawyer who has tried cases to verdict changes the negotiation before anyone picks a jury.
Before the Trial
The months before trial are the trial. Your lawyer files motions to keep evidence out and to let evidence in. He exchanges exhibit lists and witness lists with the government, and he argues over the instructions the judge will read to the jury. The Third Circuit publishes model instructions, and the fight is over the ones that do not fit the model.
The defense runs its own investigation. Your lawyer interviews witnesses the government never called, subpoenas records under Rule 17, and retains experts where the case turns on accounting, valuation, or a technical question. The government has had years. The defense usually has months.
The Jury
The jurors come from the counties the courthouse serves. In federal court the judge conducts most of the questioning, from questions the lawyers submit. Each side may remove jurors for cause without limit. In a felony case the defense has ten peremptory challenges and the government has six, under Rule 24.
The Trial Itself
The government opens first and presents its case first, witness by witness, and your lawyer cross-examines each one. When the government rests, your lawyer moves under Rule 29 for a judgment of acquittal on any count where the evidence falls short. The court must grant it where the evidence cannot sustain a conviction.
Then the defense case, if there is one. Many defense cases consist of cross-examination and nothing else, because the burden never moves. Closing arguments follow, then the instructions, then the jury retires.
The verdict must be unanimous. A jury that cannot agree is a hung jury, the judge declares a mistrial, and the government may try you again.
The Cooperating Witness
In a white collar trial the government’s most important witness is often a person who pleaded guilty, signed a cooperation agreement, and is waiting for his own sentencing. His sentence depends on the government’s view of his testimony. The jury hears that, and the cross-examination of that witness is usually the center of the defense.
The documents do the rest of the government’s work. Emails, bank records, and spreadsheets do not forget and do not negotiate, so the defense has to give the jury a different way to read them.
Whether You Testify
The decision belongs to you, and the judge will ask you on the record whether you made it freely. If you testify, the prosecutor cross-examines you, and every statement you ever made about the case, including any proffer, comes into play. If you do not, the jury hears an instruction that your silence means nothing. Most defendants in white collar trials do not testify, and the preparation for the possibility starts months before trial either way.
A federal fraud trial commonly runs two to six weeks. The jury watches you every day of it, in the hallway and at the table as much as on the stand.
What a Trial Costs
A defendant who pleads guilty usually receives a two-level reduction in his guideline offense level for acceptance of responsibility under § 3E1.1. He receives a third level on the government’s motion when the offense level is sixteen or higher. A defendant who goes to trial and loses rarely gets either. The charges in the indictment also stay where they are, with no agreement to drop counts.
Lawyers call this the trial penalty. The judge may not punish you for exercising the right to a trial. The structure of the guidelines does it without him.
Against that, an acquittal ends the case. The government cannot appeal it, and it cannot try you again on the same charge.
After the Verdict
After a guilty verdict, your lawyer has fourteen days to move for a judgment of acquittal under Rule 29 or a new trial under Rule 33. The court sets a sentencing date, usually a few months out, and the presentence investigation begins.
Before you retain anyone for a trial, ask how many federal juries that lawyer has picked and when. The answer tells you more than anything on a website.
Jay V. Surgent, Esq., is the Co-Managing Partner of Weiner Law Group LLP and the Chairman of its Criminal Litigation Department. He has conducted numerous criminal, civil, and administrative hearings and trials to verdict, and he represents individuals under federal investigation or indictment. This article is general information, not legal advice, and does not create an attorney-client relationship. His cell number is 973-580-8042.