Your right to a jury
Under Federal Rule of Criminal Procedure 23, a federal criminal trial is by jury unless the defendant waives a jury in writing, the government consents and the court approves. A jury has 12 people unless the parties agree in writing, with court approval, to fewer.
The burden of proof
The government carries the burden of proof. In In re Winship, the Supreme Court held that due process protects the accused against conviction except on proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.
Under Rule 31, the verdict must be unanimous. If the jury acquits, the government cannot appeal.
The government must prove every element beyond a reasonable doubt, and the verdict must be unanimous.
Jury selection
Under Rule 24, the court questions prospective jurors and may allow the lawyers to question them as well. In a felony case, the government has 6 peremptory challenges and the defense has 10, shared among defendants unless the court grants more. The court may seat up to 6 alternate jurors, with additional challenges for alternates.
Jury selection is the one stage where the defense speaks directly with the people who will decide the case. Jason Kaufman works as a jury consultant and teaches lawyers how to select juries, and he brings that work to every case he prepares for trial.
How a federal trial unfolds
- Pretrial motionsThe court rules on motions about evidence, witnesses and the charges.
- Jury selectionProspective jurors are questioned and the jury is seated.
- Opening statementsEach side previews what it expects the evidence to show.
- Government’s caseProsecutors call witnesses and offer exhibits; the defense cross-examines.
- Defense caseThe defense may present witnesses and evidence, but has no obligation to.
- Closing and instructionsThe lawyers argue the case and the judge instructs the jury on the law.
- Deliberations and verdictThe jury deliberates and returns a unanimous verdict on each count.
Much of the work happens before the first juror is questioned. The defense reviews discovery, investigates independently, identifies the government’s key witnesses and prepares cross-examination, and decides with the client whether to present a defense case.
In cases with several counts or defendants, keeping the evidence about one person or one count from spilling over onto another is often a central part of trial strategy.
How trial readiness affects negotiations
Under Rule 11, plea discussions happen between the prosecutor and the defense, and the judge does not take part. What each side knows about the strengths and weaknesses of the case shapes those discussions.
A defense that has studied the evidence, interviewed witnesses and prepared cross-examination can give the client a clearer picture of the risks of trial and of any offer. Preparation does not guarantee a result, but it gives the client real information to decide with.
After the verdict
An acquittal on a count ends the case on that count. After a conviction, the court’s probation office prepares a presentence report and the case moves to sentencing. A notice of appeal is generally due within 14 days after judgment is entered.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience.
Jason’s jury consulting and teaching experience shapes how the team prepares: building a theory of the case early, planning jury selection around the issues that matter and preparing cross-examination of the government’s key witnesses. The first consultation is free and confidential.