Trial

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

This is step 4 of seven in the federal court process. The step before is plea agreements; the step after is the presentence report.

What this stage actually is

Between the arraignment and the verdict, a federal criminal case runs through two distinct fights, and most people only know about the second one. The first is a fight over what the jury will be allowed to hear — litigated in writing, argued at a hearing months before trial, and decided by the judge alone. The second is the trial itself. This page covers both, in the order they happen, with the federal rule that governs each step.

The first fight is usually the more important one. A federal criminal trial is a contest over evidence the government has already been permitted to introduce. A motion to suppress is a contest over whether it gets in at all. If the motion succeeds and the suppressed evidence was the backbone of the case, the prosecution can be left without enough to proceed on some or all counts. If it fails, the case moves toward trial with the record fully intact — and, in either event, the hearing has forced the government’s agents to testify under oath, on the record, months before a juror is ever seated.

Two things about this page. First, it is federal. Federal criminal procedure is not “criminal procedure generally,” and the differences are not cosmetic: a federal criminal jury is twelve people, the government gets six peremptory challenges and the defense gets ten, closing arguments run in an order fixed by rule, and the government owes you nothing at all from a witness’s prior statements until that witness has finished testifying on direct examination. Every one of those is different from how many state courts operate, and every one of them is set out below with the rule that fixes it.

Second, it is written for the person facing the decision, not for a law-school seminar. Where a step involves a judgment call — whether to file, whether to testify, whether to renew a motion — the page says what turns on it and what a defense lawyer looks at. It does not tell you what your answer should be, because that depends on facts nobody can see from here.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The single most common misunderstanding I encounter at this stage is the belief that a suppression motion is something you file at trial. It is not. It is a pretrial motion, it is subject to a deadline the district judge sets — usually at or just after arraignment — and the consequence of blowing that deadline is that the motion is untimely and the court is not obliged to hear it. The work that wins these motions happens weeks before the deadline, not the week before trial.

The deadlines in this window

These are the deadlines that govern the stretch of a federal case from the arraignment through the fourteenth day after a verdict. Every value comes from the text of the rule or statute named in the third column. Note the fourth column carefully — the number matters less than what starts the clock, and four different clocks in this window run from four different triggers.

Stage	Deadline	Rule	What triggers the clock
Pretrial motions (including suppression)	The deadline the court sets at or after arraignment; if it sets none, the start of trial	Fed. R. Crim. P. 12(c)(1)	The court’s scheduling order, or the start of trial by default
Untimely Rule 12(b)(3) motion	Court may still consider it on a showing of good cause	Fed. R. Crim. P. 12(c)(3)	Expiration of the court’s deadline
Notice of alibi defense, after a government written request	Within 14 days of the request, or another time the court sets	Fed. R. Crim. P. 12.1(a)(2)	The government’s written request
Government’s alibi-rebuttal disclosure	Within 14 days after the defendant’s notice, but no later than 14 days before trial	Fed. R. Crim. P. 12.1(b)(2)	The defendant’s Rule 12.1(a)(2) notice
Government expert disclosure	The time the court sets, “sufficiently before trial to provide a fair opportunity for the defendant to meet the government’s evidence”	Fed. R. Crim. P. 16(a)(1)(G)(ii)	The court’s order or local rule
Earliest permitted trial date	Not less than 30 days, unless the defendant consents in writing	18 U.S.C. § 3161(c)(2)	Date the defendant first appears through counsel or waives counsel
Charge → trial	70 days, less all delay excludable under § 3161(h)	18 U.S.C. § 3161(c)(1)	Later of the filing (and unsealing) of the charge, or first appearance before a judicial officer of the trial court
Jencks Act witness statements	After the witness testifies on direct examination — nothing is owed before	18 U.S.C. § 3500(a)–(b); Fed. R. Crim. P. 26.2(a)	The witness’s direct examination
Objection to jury instructions	Before the jury retires to deliberate	Fed. R. Crim. P. 30(d)	The court’s charge / close of evidence
Judgment of acquittal, at trial	At the close of the government’s evidence, or at the close of all the evidence	Fed. R. Crim. P. 29(a)	The close of that party’s evidence
Judgment of acquittal, post-verdict	14 days	Fed. R. Crim. P. 29(c)(1)	Later of the guilty verdict or discharge of the jury
New trial — grounds other than newly discovered evidence	14 days	Fed. R. Crim. P. 33(b)(2)	The verdict or finding of guilty
New trial — newly discovered evidence	3 years	Fed. R. Crim. P. 33(b)(1)	The verdict or finding of guilty
Retrial after mistrial or new-trial order	70 days	18 U.S.C. § 3161(e)	Date the action occasioning the retrial becomes final

Three cautions that apply to the whole table. What starts the clock is as important as the number: Rule 33 runs from the verdict, Rule 29(c) from the later of verdict or discharge of the jury, and the appeal clock — which belongs to a later stage — runs from entry of judgment, some days after the sentencing hearing. Most of these are ceilings or defaults rather than guarantees; where the rule says “unless the court changes it” or “the time the court sets,” that language is doing real work. And nothing on this page should be used to build a personal timeline or predict a date in any specific case.

The one entry on that table that surprises nearly every defendant is the Jencks Act line, and it is worth stating twice. Statements of a government witness — reports, interview memoranda, grand jury transcripts — are not discoverable in advance. 18 U.S.C. § 3500(a) says that in a federal prosecution “no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” Many districts and many prosecutors produce this material days or weeks early as a matter of practice or standing order. But the statute entitles a defendant to nothing before direct examination, and nobody should plan a defense on the assumption of early production.

Suppression grounds, at a glance

This table is the map of Part One. Each row is a distinct legal theory with a distinct thing the defense has to show and a distinct case the argument is built on. Real motions frequently plead several of these in the alternative.

Ground	Constitutional basis	What the defense must establish	Leading case
Stop without reasonable suspicion	Fourth Amendment	A seizure occurred, and the officer could not point to “specific and articulable facts” warranting the intrusion	Terry v. Ohio, 392 U.S. 1 (1968)
Detention based only on location	Fourth Amendment	The only basis offered was presence in a high-crime or high-drug area, standing alone	Brown v. Texas, 443 U.S. 47 (1979)
Traffic stop unlawfully prolonged	Fourth Amendment	The stop was extended beyond the time reasonably required to complete its mission, without independent reasonable suspicion	Rodriguez v. United States, 575 U.S. 348 (2015)
Vehicle search incident to arrest	Fourth Amendment	The arrestee was secured and could not reach the passenger compartment, and there was no reason to believe the car held evidence of the offense of arrest	Arizona v. Gant, 556 U.S. 332 (2009)
Warrantless entry of a home	Fourth Amendment	Police crossed the threshold without a warrant, consent, or exigent circumstances	Payton v. New York, 445 U.S. 573 (1980)
Consent not voluntary	Fourth Amendment	Under the totality of the circumstances the consent was the product of duress or coercion — the government bears this burden	Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
Consent obtained by a claim of authority to search	Fourth Amendment	Officers asserted a warrant, or the equivalent, and the occupant merely acquiesced	Bumper v. North Carolina, 391 U.S. 543 (1968)
Search exceeded the scope of consent	Fourth Amendment	A typical reasonable person would not have understood the exchange to authorize what the officers actually searched	Florida v. Jimeno, 500 U.S. 248 (1991)
Statement taken in custody without warnings	Fifth Amendment	The person was in custody, was interrogated, and was not given the warnings — or did not validly waive them	Miranda v. Arizona, 384 U.S. 436 (1966)
Derivative evidence — “fruit of the poisonous tree”	Fourth / Fifth Amendment	The evidence was come at “by exploitation of” the primary illegality rather than by means sufficiently distinguishable to purge the taint	Wong Sun v. United States, 371 U.S. 471 (1963)
Confession following an unlawful arrest	Fourth Amendment	Warnings alone did not purge the taint, weighing temporal proximity, intervening circumstances, and the flagrancy of the misconduct	Brown v. Illinois, 422 U.S. 590 (1975)

Every one of those cases is discussed below with the language the court actually used, because in suppression litigation the exact formulation is the argument.

Part one: challenging the evidence before trial

What a motion to suppress is

A motion to suppress is a written request asking the district court to rule that specific evidence may not be used against you at trial because the government obtained it in violation of your constitutional rights. It is decided by the judge, before the jury exists, and it is decided on facts developed at a hearing rather than on the pleadings.

In federal court a suppression motion is not a free-floating application. It is one of five categories of defense that Fed. R. Crim. P. 12(b)(3) says “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” The five are: a defect in instituting the prosecution, a defect in the indictment or information, suppression of evidence, severance of charges or defendants under Rule 14, and discovery under Rule 16. Suppression is subsection (C).

That placement matters in a way clients rarely anticipate. It means the motion is governed by a deadline the district judge sets, not by the trial date; it means the issue is decided long before a jury is empanelled; and it means that if the motion is not made on time, the court is not required to entertain it.

What kinds of evidence can be suppressed

Any evidence obtained in violation of a constitutional right the defendant personally holds. In practice that falls into two broad classes:

• Tangible physical evidence — a firearm, controlled substances, packaging and scales, currency, a phone, a laptop, documents, clothing, DNA or other biological samples, and the forensic results derived from any of them.
• Testimonial evidence — statements you made to law enforcement, including an alleged confession; statements overheard by officers; and statements made in response to questioning that should have been preceded by warnings.

It also reaches derivative evidence: things the government would not have found but for the unlawful act. That is the fruit-of-the-poisonous-tree doctrine, and it is treated separately below because it has its own test and its own set of exceptions.

Two categories that get miscategorised are worth naming. Identification evidence — a photo array, a line-up, a show-up — is challenged on due-process grounds where the procedure was impermissibly suggestive; it is a suppression issue but it is not a Fourth Amendment issue, and it is analyzed under a different framework. Chain-of-custody problems — gaps in the documented handling of a seized item between seizure and courtroom — are ordinarily litigated as an admissibility and weight question under the Federal Rules of Evidence rather than as a constitutional suppression claim, though a serious break can support a motion in limine and will always support cross-examination. A page that lumps all four together, as many general criminal-law guides do, is describing four different motions under one heading.

What law-enforcement conduct makes evidence suppressible

The United States Constitution sets the outer limits of what investigators may do. Three provisions do nearly all the work at this stage:

• The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that no warrants shall issue but upon probable cause.
• The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
• The Sixth Amendment guarantees the assistance of counsel for the defense, and the right “to be confronted with the witnesses against him.”

Evidence may be subject to suppression where it is the product of any of the following.

An unlawful search or seizure, which can arise where:

• officers acted without a warrant in a situation where a warrant was required;
• officers had a warrant, but it was defective — for example, it was not supported by probable cause, or it failed to describe the place to be searched or the things to be seized with the particularity the Fourth Amendment requires;
• officers had a valid warrant but executed it improperly;
• officers were not lawfully on the premises where the evidence was found;
• the search went beyond the area the warrant described; or
• the search went beyond the items the warrant listed.

An unlawful stop or detention — a seizure of the person unsupported by reasonable suspicion, or a lawful stop that was prolonged past the point at which its justification ran out.

An unlawful interrogation, which can arise where:

• you were questioned in custody without being advised of your rights;
• officers continued to question you after you asked for a lawyer;
• officers continued to question you after you said you did not want to answer;
• the conditions of the interrogation were such that the statement cannot be treated as the product of free will; or
• you were subjected to physical force or threats.

An unlawful out-of-court identification, where the procedure used to identify you — a photo array, a line-up, a show-up at the scene — was arranged in a way that made the identification unreliable.

The Rule 12 deadline, and what missing it costs

There is no national number of days for pretrial motions in a federal criminal case. Anyone who tells you that you have thirty days to file a suppression motion in federal court is inventing a rule. What Fed. R. Crim. P. 12(c)(1) actually says is: “The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing.” The deadline is whatever your judge’s scheduling order says it is.

If the judge sets no deadline, the rule supplies one: “If the court does not set one, the deadline is the start of trial.” And the deadline is not immovable — “At any time before trial, the court may extend or reset the deadline for pretrial motions.”

The consequence of missing it is stated precisely, and the precision matters: “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.”

Read that twice. The rule says untimely, not waived. Before the 2014 amendment the rule spoke in terms of waiver, and a great deal of older writing — including a great deal of writing still on the internet — describes an untimely suppression motion as automatically waived. That is not what the current rule says. An untimely motion is untimely, and the court may consider it anyway on a showing of good cause. That is a real safety valve and it is not a plan. Good cause is a discretionary finding by the district judge, and no defendant should assume it will be made.

What this means in practice. The scheduling order in a federal criminal case typically issues at or within days of arraignment and typically gives the defense something in the range of a few weeks to a couple of months. In that window your lawyer has to obtain and read the discovery, interview you at length, run an independent investigation, decide which of several possible theories to plead, and write the motion with the facts already pinned down. Extensions are common and routinely granted for cause — voluminous discovery, a late-produced forensic report, a wiretap. What is not common is a court excusing a motion filed on the eve of trial on a record that was available all along.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: When I take over a case after the motions deadline has passed, the first question is always whether there is good cause under Rule 12(c)(3), and the second is whether the failure to file is itself a claim for later. Those are two different arguments in two different postures, and neither is a substitute for filing on time. If you are reading this before your deadline, the useful thing you can do is get your lawyer every detail of the encounter you can remember — including the ones you think are irrelevant.

The Fourth Amendment framework a federal judge actually applies

Federal suppression litigation is not a general inquiry into whether the police behaved well. It runs through a sequence of specific questions, and losing on any one of them ends the motion.

1. Was there a search or a seizure at all? Not every police-citizen encounter is a Fourth Amendment event. An officer walking up to someone on a sidewalk and asking questions is a consensual encounter that requires no justification. The line is drawn where restraint begins. Terry v. Ohio put it directly: “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”

2. If so, was it reasonable? For a brief investigative detention the standard is reasonable suspicion. For an arrest or a full search, it is probable cause. For entry into a home it is, absent an exception, a warrant.

3. Whose rights were affected? Fourth Amendment rights are personal. A defendant cannot win suppression by showing that somebody else’s rights were violated. This is the standing question, and it is discussed below.

4. If there was a violation, does the exclusionary rule apply to this evidence? The remedy is not automatic. The exclusionary rule has a purpose — deterrence — and a set of doctrines that carve out situations where exclusion would not serve that purpose.

5. If the evidence is excluded, what else falls with it? That is the fruit question.

Federal judges work through this sequence in written orders, and a well-built motion is organized the same way: establish the seizure, attack its justification, establish standing, anticipate the exceptions, and then reach for the derivative evidence.

Reasonable suspicion: what the standard actually requires

Terry v. Ohio, 392 U.S. 1 (1968), is where the modern law of the investigative stop begins, and it is the case a federal judge will cite when deciding whether an officer was entitled to stop you. Its central requirement is a demand for articulable facts rather than instinct: “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The Court added that “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”

Terry also authorized the protective frisk, and it drew the boundary of that frisk narrowly. An officer may conduct “a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him” — but only “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.” Two findings, not one. And the scope is confined: the search “must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry itself emphasized that the officer there “did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons,” and that he “did not conduct a general exploratory search for whatever evidence of criminal activity he might find.”

That last sentence is the whole of a great many suppression motions. A pat-down that turns into a reach into a pocket, or an unzipping of a jacket, is no longer the search Terry permits — and unless probable cause to arrest had already arisen, the government has to justify it on some other ground.

Practically, the reasonable-suspicion standard is not difficult for law enforcement to meet, and it would be dishonest to suggest otherwise. Factors that courts have treated as relevant include the officer’s own observations; information received from other officers or from informants; the officer’s knowledge of a person’s record; proximity in time and place to a reported offense; the character of the neighborhood, in combination with other facts; the time of day; a person’s reaction to police presence; and the discarding of items.

Two of those factors carry specific limits that a defense lawyer will press.

Location, standing alone, is not enough. Brown v. Texas, 443 U.S. 47 (1979), holds that “the fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct,” and that “in the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.”

Flight is a factor, not a rule. Illinois v. Wardlow, 528 U.S. 119 (2000), holds that unprovoked flight upon noticing police, in a high-crime area, can supply reasonable suspicion. The Court’s language is careful in both directions: “Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” And it reaffirmed Brown v. Texas: “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Wardlow also preserved the distinction that matters most on these facts: “any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ But unprovoked flight is simply not a mere refusal to cooperate.”

The gap between “he ran” and “he walked away” is therefore a real gap, and it is frequently where a stop case is won or lost.

The exclusionary rule and its four big limits

If a court finds a violation, the remedy is suppression — but the remedy is not automatic, because the rule is not a personal entitlement. United States v. Leon, 468 U.S. 897 (1984), describes it as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”

That framing is the doorway through which every exception walks. If suppression would not deter police misconduct in the situation before the court, the court will not order it. Four doctrines do most of that work.

Good faith reliance on a warrant

Leon held that evidence obtained by officers acting in objectively reasonable good-faith reliance on a search warrant issued by a neutral magistrate need not be suppressed even if the warrant is later held not to have been supported by probable cause. In a case built on a warrant, this is the government’s first and often only answer to a probable-cause attack, and a motion that does not anticipate it is incomplete.

Leon itself, however, marked out situations in which the good-faith argument fails. Two are quotable and both come straight from the opinion.

The first preserves the rule of Franks v. Delaware: “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.”

The second addresses the affidavit that is too thin to have been relied on at all. An officer does not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'”

So the defense attack on a warrant case usually proceeds on two levels at once: the warrant lacked probable cause, and no reasonably well-trained officer could have thought otherwise — or, on the Franks track, the affidavit contained a knowing or reckless falsehood without which probable cause disappears. A Franks challenge has its own procedural requirements and its own threshold showing before a hearing is granted; it is a distinct motion, not an argument you make for the first time at the podium.

Note the boundary of Leon as decided. The opinion addresses reliance on a warrant. It does not by its terms address the application of a good-faith principle to warrantless searches and seizures — the Court expressly did not reach that. Later decisions developed the doctrine further; a motion in a warrantless case should be built on the warrantless framework rather than assuming Leon controls it.

Independent source

Evidence that the government actually obtained through a lawful route independent of the illegality is admissible. Murray v. United States, 487 U.S. 533 (1988), applied that principle to the hardest version of the problem — officers who unlawfully entered a warehouse, saw what was inside, and then obtained a warrant. The Court held that “so long as a later, lawful seizure is genuinely independent of an earlier, tainted one … there is no reason why the independent source doctrine should not apply,” and framed the inquiry: “The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here.”

Murray also supplies the test that decides most independent-source fights: “To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred — not whether it would have been sought if something else had happened. That is to say, what counts is whether the actual illegal search had any effect in producing the warrant.” A warrant application that recites what officers saw during the unlawful entry is not genuinely independent, and the defense cross-examination at the hearing is aimed at establishing exactly that — when the decision to seek the warrant was made, by whom, and on the strength of what.

Inevitable discovery

Evidence that would have been found anyway by lawful means is admissible. Nix v. Williams, 467 U.S. 431 (1984), set both the doctrine and the burden: “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means … then the deterrence rationale has so little basis that the evidence should be received.”

Two features of Nix are worth knowing before the hearing. The burden is on the government, and the standard is a preponderance — the Court declined to require clear and convincing evidence, and the higher standard appears only in a dissent. And the government does not have to prove its officers acted in good faith; the Court expressly rejected a requirement “that the prosecution must prove the absence of bad faith.”

Murray explains the relationship between the two doctrines cleanly: inevitable discovery “is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Independent source is about a lawful route that actually happened. Inevitable discovery is about a lawful route that would have happened. The defense attack on the second is that the “inevitable” route is a story constructed after the fact — an inventory policy nobody followed, a canine unit that was never called, a warrant nobody was drafting.

Attenuation

Even where the causal chain from the illegality to the evidence is real, the connection can become too attenuated to justify suppression. Wong Sun v. United States, 371 U.S. 471 (1963), stated both the reach of the rule and its limit. On reach: “The exclusionary prohibition extends as well to the indirect as the direct products of such invasions,” and “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest … is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.”

On the limit, Wong Sun rejected a pure but-for test and supplied the question courts still ask: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'”

Brown v. Illinois, 422 U.S. 590 (1975), supplies the factors for the most common version of the problem — a statement following an unlawful arrest — and answers a question defendants ask constantly. Do the warnings fix it? No: “the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” The Court held the question “must be answered on the facts of each case. No single fact is dispositive,” and identified what matters: “The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant.”

And on the allocation of the burden, Brown is explicit: “The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.” Brown also drew a distinction that recurs at every suppression hearing involving a statement: breaking the causal chain requires “not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.'” A statement can be voluntary and still be suppressible as the fruit of an unlawful arrest.

Attacking the affidavit itself: the Franks hearing

Where the case rests on a warrant, there is a fifth line of attack that is procedurally distinct from all of the above, and it has its own gate. Franks v. Delaware, 438 U.S. 154 (1978), holds that a defendant is entitled to an evidentiary hearing on the truthfulness of a warrant affidavit — but only on a showing made first, in writing.

The holding: “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”

What has to be in the papers is spelled out: “To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.”

And what has to be proved, if the hearing is granted, is a two-part showing on which the defendant bears the burden: “In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded.”

Two limits are stated in the opinion and both are commonly overlooked. “Allegations of negligence or innocent mistake are insufficient.” And the falsity that can be impeached “is only that of the affiant, not of any nongovernmental informant” — a defendant who can show that a confidential informant lied to the agent has not, by that fact alone, made a Franks showing.

A Franks motion is therefore a different animal from an ordinary suppression motion. It has to be built on documents and sworn statements before you get a hearing, which means the investigative work has to be finished earlier, and it is a claim the defense must prove rather than one the government must disprove.

Standing: whose rights were violated

A defendant can move to suppress only evidence obtained in violation of his own rights. Rakas v. Illinois, 439 U.S. 128 (1979), states the principle without qualification: “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”

The test is not ownership. It is a legitimate expectation of privacy in the place searched: capacity to claim Fourth Amendment protection “depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” That test can be satisfied somewhere other than your own home — Rakas accepted “the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.”

But Rakas itself held that passengers in a car, who assert no property or possessory interest in the vehicle and no interest in the items seized, generally have no legitimate expectation of privacy in the glove compartment or the area under the seat: those are “areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.”

The Court also reframed the vocabulary, and the reframing matters to how the motion is written: the inquiry “is more properly subsumed under substantive Fourth Amendment doctrine,” focusing on “the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” Lawyers and judges still say “standing,” but the government’s brief will argue it as a merits point, and the defense has to plead the privacy interest affirmatively with facts.

Note what Rakas did not decide. It did not address whether a passenger may challenge the initial stop of the vehicle — as opposed to the search of its interior — and it did not address a passenger’s privacy interest in his own personal effects inside someone else’s car. Those are separate questions with their own answers, and a motion on behalf of a passenger is usually built on the stop rather than on the search.

The practical consequence is uncomfortable but has to be said plainly: in a multi-defendant case, the same search can be suppressible as to one defendant and not as to another. Deciding who has the privacy interest to assert, and pleading the facts that establish it, is part of the first hour of work on any suppression motion.

Fruit of the poisonous tree

If the primary evidence goes, what else goes with it? That is the fruit question, and Wong Sun is the source of the answer in both directions.

The doctrine’s reach is broad. It covers physical evidence, verbal evidence, and leads: “The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.” Wong Sun quoted Justice Holmes’s formulation of why: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”

And the doctrine’s limit is the sentence quoted earlier: the question is not but-for causation but “whether … the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Wong Sun also illustrated the attenuation side on its own facts. One defendant’s statement, made several days after an unlawful arrest, was held admissible because he “had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement,” so that “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.'” Release, the passage of days, and a voluntary return did the work.

In a real motion the fruit argument is written as a chain: the unlawful stop produced the pat-down, which produced the firearm, which produced the arrest, which produced the station-house statement, which produced the consent to search the phone. The government answers each link with independent source, inevitable discovery, or attenuation. A defense lawyer preparing the motion writes the chain out in both directions before filing, because a link that cannot be defended is better identified in the office than at the podium.

The Fifth Amendment side: statements, custody, and warnings

Miranda v. Arizona, 384 U.S. 436 (1966), is the case everyone can recite and almost nobody states accurately. Its holding: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”

Note “exculpatory or inculpatory.” The rule is not limited to confessions. A denial that later turns out to be provably false is a statement stemming from custodial interrogation, and it is covered.

The warnings, as Miranda states them: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

Two further holdings do a great deal of work at suppression hearings. On invocation: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” And on waiver, the allocation is not close: “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda added that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

Congress attempted to displace this framework by statute. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held: “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.” Dickerson also confirmed the scope: “Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.”

When is a person “in custody”?

This is the fight in most statement cases, because the government’s position is almost never “we didn’t warn him” — it is “he wasn’t in custody, so we didn’t have to.”

Miranda itself defined the trigger: “custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Howes v. Fields, 565 U.S. 499 (2012), states the modern two-step inquiry and is the case a federal court will work from. Step one: “the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'”

Step two is the part that catches defense lawyers who stop at step one: “the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” Courts also ask “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”

Howes lists the factors: “the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.”

Formal arrest is not required, and the label the officers used is not the answer. Neither, though, is the defendant’s private belief; the standard is objective. What the defense builds at the hearing is a factual record of the objective circumstances — how many officers, whether the person was told he was free to leave, how he got to the location, whether the door locked, whether he could use a phone or a public bathroom, how long it lasted, and whether he went home afterwards.

Grounds for challenging a statement

Whether the statement was made in a car, a house, a business, or an interrogation room, the possible attacks include:

• whether you were advised of your rights at all;
• the timing and circumstances of the advice — warnings given after hours of questioning, or after an admission, raise their own problems;
• whether any waiver was knowing, intelligent, and voluntary, on which the government carries a heavy burden;
• whether officers honored your statement that you did not want to answer questions;
• whether you asked for a lawyer, and whether and when the questioning stopped;
• whether the statement was the fruit of an unlawful arrest, under Brown v. Illinois;
• whether the interrogation techniques used render the statement unreliable; and
• whether the statement was coerced.

On that last point, the conduct courts have examined includes physical force or threats; interrogations that are lengthy or repeated, or during which the person is deprived of sleep, held incommunicado, or questioned by relays of interrogators; threats of consequences the officers had no power to impose; deliberately making the person physically uncomfortable; promises of leniency; and fabricating evidence. Coercion claims are intensely fact-specific and turn on the totality of the circumstances, which is precisely why the client interview described below is so long.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: Clients frequently open the first meeting by saying that the statement is the end of the case — “I already told them everything.” That is not how the analysis works. Whether the statement comes in is a separate legal question from whether it is true, and the answer turns on facts about the interrogation that the client is often the only source for. The details that decide these motions are the ones nobody thinks to volunteer: which entrance you were brought in through, whether the door locked behind them, whether you were escorted to the bathroom, and whether anyone ever said you could go.

How a suppression motion actually gets built

Regardless of what kind of evidence is at issue, the process runs through five stages. The order matters, because each stage produces the raw material for the next.

Stage one: a long interview with your lawyer

The first step toward a viable motion is a detailed, unhurried interview. It can run for hours, and it should. Your lawyer is looking for facts that establish or defeat a constitutional violation, and those facts live in a level of detail that feels excessive while you are supplying it.

The interview covers how you came into contact with law enforcement; what happened once contact was made; the exact words used by you and by the officers, as best you can recall them; where everyone was standing; what you could see; and whether anyone else was present who could describe the encounter.

Tell your lawyer the truth, including the parts that are bad for you. Motions to suppress are won and lost on specific facts, and a lawyer working from an incomplete account will build the argument on a foundation that collapses when the officer testifies. Your conversations with your lawyer are protected by the attorney-client privilege; the substance of those conversations is confidential. Details that seem trivial to you — the time on the dashboard clock, whether the officer’s hand was on his weapon, whether the porch light was on — are frequently the facts that decide the motion.

Stage two: independent investigation

After the interview, your lawyer investigates rather than accepting the reports at face value. That work typically includes:

• Witness interviews. Your lawyer, or more often an investigator working for your lawyer, will locate and interview people who saw the encounter — neighbors, passengers, the person whose house it was, anyone in the group on the porch.
• A visit to the scene. Counsel goes to the place where the stop, arrest, or surveillance occurred. Sight lines, distances, lighting, and the physical layout are frequently not as the report describes them, and a scene visit produces the questions that make a cross-examination work.
• Officer history. Prior findings of misconduct, prior testimony in other cases, and internal-affairs history where obtainable.
• The paper. Every report, supplement, dispatch log, body-worn and dashboard camera file, evidence receipt, and the agency’s own training materials and written policies. The gap between what a policy requires and what the officer did is a recurring theme in these hearings.

In a federal case this work is done alongside — and against the limits of — Rule 16 discovery, which is narrower than most people expect and is covered in more depth on the pretrial page. Rule 16 does not authorize discovery of the government’s internal work product, and — critically — “Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.”

Stage three: drafting and filing

When the preliminary work is done, counsel drafts the motion and files it before the Rule 12 deadline. A federal suppression motion is a legal document with a specific job: it must identify the evidence, plead the facts that establish standing, plead the facts that establish the violation, and cite the authority. Many districts require a supporting memorandum of law and some require a sworn declaration or affidavit setting out the disputed facts, because a court will not always grant an evidentiary hearing on an unsworn assertion. Check the local rules and the judge’s standing order; they vary considerably from district to district. A sample federal motion appears at the end of Part One.

Stage four: the hearing

The motion may be decided on the papers where the material facts are not in dispute. More often, the court holds an evidentiary hearing.

Stage five: the ruling

The court rules — sometimes from the bench, more often in a written order that makes findings of fact and conclusions of law. That written order will matter later. If there is an appeal, the appellate court reviews the district court’s factual findings deferentially and its legal conclusions afresh, which is why the facts your lawyer establishes at the hearing are worth more than the arguments made about them.

What a federal suppression hearing actually looks like

A suppression hearing is a bench proceeding. There is no jury. The judge sits as the finder of fact, and Fed. R. Evid. 104(a) provides that the court “must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible,” and that “in so deciding, the court is not bound by evidence rules, except those on privilege.”

That single sentence changes the texture of the proceeding. Hearsay that would be excluded at trial is routinely received at a suppression hearing. An agent can testify to what a confidential informant told him. Reports come in. The relaxed evidentiary standard cuts both ways, and it is why cross-examination — not objection — is the defense tool at this stage.

Who testifies. The government calls the officers and agents who conducted the stop, the search, or the interrogation. Your lawyer cross-examines each of them. Other witnesses may testify to what happened: the people who were present when officers entered the home, the passenger in the car, a neighbor. Depending on the facts and the theory, you may testify.

If you testify at the hearing, you are protected in a specific and important way. Fed. R. Evid. 104(d) provides: “By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.” Rule 104(c) also requires the court to hold the hearing outside the jury’s presence where it “involves the admissibility of a confession,” where “a defendant in a criminal case is a witness and so requests,” or where “justice so requires.” Whether to testify at a suppression hearing is nonetheless a significant decision with consequences beyond the rule’s text, and it is one to work through carefully with counsel.

Jencks material is available at the hearing. This is a point many defendants do not know and it is worth stating in terms. Fed. R. Crim. P. 26.2 provides that “this rule applies at trial, at a suppression hearing under Rule 12,” and to preliminary hearings, sentencing, revocation hearings, detention hearings, and § 2255 proceedings. So once the case agent has testified on direct at the suppression hearing, the defense may move for production of his prior statements relating to the subject matter of that testimony — and that is frequently the first time anyone outside the government has seen them.

Rule 26.2 also defines what counts as a “statement”: “(1) a written statement that the witness makes and signs, or otherwise adopts or approves; (2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or (3) the witness’s statement to a grand jury, however taken or recorded.” And note that Rule 26.2 is reciprocal — it binds the defense as well as the government, which the Jencks Act itself does not.

The object of cross-examination. The goal is to show that the officer’s account should not be believed, or that even on the officer’s own account the law was not satisfied. That means bias, motive, an inability to have observed what is claimed, and — most productively — inconsistency between the sworn testimony and what the officer wrote in a report months earlier, when nobody had yet identified the legal problem.

Burden of proof. Where the government relies on consent, Bumper v. North Carolina states the rule: “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Where the government relies on inevitable discovery, Nix puts the burden on the prosecution by a preponderance. Where the government seeks to admit a statement following an unlawful arrest, Brown v. Illinois says “the burden of showing admissibility rests, of course, on the prosecution.” Where the defense attacks a warrant affidavit under Franks, the burden is on the defendant by a preponderance. Burden allocation is not uniform across suppression theories, and knowing which party carries it on which issue shapes who calls whom.

If you win the motion

If the judge rules in your favor, the evidence identified in the motion is suppressed — the government may not use it in its case-in-chief to prove the charges. The prosecution remains free to try to prove its case with other evidence.

Where the suppressed evidence was central, the practical consequences can be significant. The government may move to dismiss counts it can no longer prove. In some cases the government takes an interlocutory appeal of the suppression order, which is one of the limited circumstances in which the government may appeal before final judgment; that is discussed on the interlocutory appeal page. Where the case survives, a granted suppression motion changes the negotiating landscape, because both sides are now working from a smaller record.

None of that is a promise. Whether a motion succeeds turns on facts, on the district, and on the judge, and no honest lawyer will tell you in advance how yours will come out.

If you lose the motion

The case moves toward trial. But the hearing was not wasted, and the reasons are concrete:

• You have sworn testimony. The officers have committed themselves, under oath and on the record, to a version of events. At trial, any departure from that testimony is impeachment material, and it is impeachment material in a transcript rather than a report.
• You have seen the Jencks material for those witnesses, produced under Rule 26.2 at the hearing rather than mid-trial.
• Your lawyer has watched the prosecutor work — how the case is organized, which facts are emphasized, how the AUSA handles an unhelpful answer.
• Your lawyer has watched the agents under cross-examination and knows which of them is careful, which is defensive, and which will argue with a question.
• The issue is preserved. A properly raised and denied suppression motion is preserved for appeal, subject to the rules on preservation discussed on the preserving error for appeal page. On appeal, the standard of review differs for factual findings and legal conclusions; see standards of review.

There is also a route that keeps the issue alive without a trial: a conditional plea under Fed. R. Crim. P. 11(a)(2), which allows a defendant, with the consent of the government and the court, to plead guilty while reserving in writing the right to appeal an adverse pretrial ruling. That mechanism belongs to the plea agreements page, but it is worth knowing it exists before the suppression motion is decided, not after.

Four fact patterns, worked through

What follows are four recurring situations in which evidence is seized in a way that will not survive scrutiny: an investigative stop, a car search, a home search, and a station-house interrogation. Each is presented the way a case is actually built — the governing federal law, the questions your lawyer will ask you, a scenario, the cross-examination that develops the record, and the argument that record supports.

These are illustrations, not templates, and they are not predictions. They are here because the shape of the work is invisible from outside and clients are entitled to see it.

One preliminary point about federal cases specifically. A large share of the evidence in a federal prosecution is gathered by state and local officers — on a joint task force, on a highway interdiction stop, on a local warrant that later becomes a federal case. The federal court hearing the motion applies federal constitutional standards to that evidence. The officer who testifies at your federal suppression hearing may well wear a county sheriff’s uniform, and the analysis does not change because of it.

Fact pattern one: evidence from an investigative stop

The federal law of the stop

An officer may not stop and detain you unless he has reasonable suspicion that you have committed, are committing, or are about to commit a crime, supported — in the language of Terry v. Ohio — by “specific and articulable facts.” A hunch is not enough, and neither is a general sense that something is off.

In connection with such a stop, officers may pat down the outer clothing for weapons only where they have reason to believe the person is armed and dangerous. That is a separate finding from the one that justifies the stop. The frisk is limited to the outer clothing and to what is necessary to detect a weapon; reaching into a pocket or unzipping a jacket exceeds it, unless what was felt in the pat-down itself supplied lawful grounds to go further.

Officers may not conduct a more intrusive search without a warrant unless they have probable cause to arrest — a higher standard than reasonable suspicion.

If you are not being detained, you are free to end the encounter and walk away. If you are prevented from leaving without reasonable suspicion, that is an unlawful seizure. And presence in a high-crime or high-drug neighborhood, without more, is not reasonable suspicion: Brown v. Texas says so directly.

A frequent pattern is a full search followed by a claim that probable cause to arrest existed all along. Because the scope of a search permitted under Terry is much narrower than a search incident to arrest, whether probable cause actually existed at the moment of the search — and on what facts — is frequently a productive line of attack.

What your lawyer will ask you

If you were stopped on the street, expect questions along these lines. They are not idle. Each maps to an element of the analysis: whether a seizure occurred, when it occurred, and what the officer knew at that moment.

About the initial contact:

• Did the officers ask whether they could speak with you, or did they order you to stop?
• What words did the officer use? What was his tone?
• Did any officer display a weapon, or place a hand on one?
• Were you alone or with other people?
• What time was it? Daylight, dusk, or dark?
• Where were you stopped? Describe the block, the building, the street.
• Were you aware of any ongoing criminal activity at that time and place?
• Did you believe you were free to leave or walk away?
• Did you try to leave? What did the officers do?
• When did you first notice the officers?
• Did you make any attempt to avoid them?
• Did you drop or throw away anything once you saw them?

About the frisk or search:

• Did the officer say anything before patting you down?
• How was the pat-down conducted?
• What was seized? Describe the item’s shape, size, and feel.
• Where on your person was it?
• How did the officer remove it?
• Did the officers comment on what they found?
• Were you ever told you were under arrest?
• At what point in the encounter were you told that?
• Were you handcuffed or otherwise restrained?
• Were you subjected to a full search of your person, beyond a pat-down?
• If you were not told you were under arrest, what justification did the officer give for the more intrusive search?
• At what point did you feel you were not free to leave, and what specifically made you feel that?

A common scenario

Officers are patrolling a neighborhood they describe as high-crime, investigating drug sales and use. They see four young men on a front porch and decide to investigate whether they possess drugs. They get out of their vehicle and approach. On seeing the officers, one of the men — call him Joe — walks off the porch and starts to leave the area. An officer tells Joe he cannot leave and orders him back onto the porch. The officers then go up onto the porch where, they say, they observe a blunt in a planter. They pat down everyone in the group and find a firearm on Joe. Because Joe has a prior felony conviction, the case is adopted federally and charged as unlawful possession of a firearm by a prohibited person.

Joe’s lawyer moves to suppress the firearm.

The cross-examination

The object is to fix the sequence — that Joe was seized before anything suspicious was observed — and to establish that the seizure was a show of authority a reasonable person would not have felt free to disregard.

On the reason for the approach

Q: You saw four people on the porch of a home and decided to speak with them?

A: Yes. We were investigating drug possession and sales and were asking residents for information.

Q: You stopped your vehicle and approached the people on the porch?

A: Yes.

Q: At that time you had not seen any of these people in possession of drugs?

A: We saw a blunt — a cigar emptied and commonly filled with marijuana — in a planter on the porch.

Q: You had not seen that at the time you approached the porch?

A: Not yet. We saw it once we were on the porch.

On the sequence

Q: Before you were on the porch you saw my client, Joe, leave the porch, correct?

A: Yes. He began walking away from the home when our vehicle pulled up. After I got out, I told him to stop.

Q: At the point you told him to stop, he was no longer on that property, correct?

A: He was in front of the house immediately to the north.

Q: And you ordered him to stop?

A: I told him to stop, and he complied.

Q: Can you tell the court the words you used?

A: I said something to the effect of, “Stop. You have to stay here.”

On the show of authority

Q: When you ordered him to stop, you spoke loudly enough to be heard over the voices of the other people there?

A: Yes.

Q: So it is fair to say you were speaking in a louder tone than the one you are using now, testifying in court?

A: Yes.

Q: When you and other officers approach a group of people, you are always mindful of your safety?

A: Yes, of course.

Q: One way to address that is to have your weapon accessible before approaching a group?

A: Yes, but I didn’t have my gun pointed at anyone.

Q: But it was out of the holster?

A: It was not fully holstered.

Q: By not fully holstered, you mean you had partly lifted it so you were ready to use it if you needed to?

A: Yes.

Q: You had your hand on the weapon for rapid access?

A: Yes.

On compliance

Q: My client complied with the order and did not try to run?

A: Yes.

Q: You directed him to return to the porch?

A: Yes.

Q: He complied with that order as well?

A: Yes.

Q: You only saw the blunt after that occurred?

A: I observed it within moments of being on the porch.

Q: And that was after you ordered my client to stop and return to the porch, correct?

A: Yes.

The argument

On that record, counsel argues:

“Your Honor, the officers decided to approach a group of people to question them about drug possession and use. What they did was the equivalent of a knock-and-talk, without the knocking. Officers may walk up to a group of citizens and ask them questions. They may not detain those citizens without reasonable suspicion that they are committing a crime.

Here there were no specific and articulable facts on which the officers suspected my client of criminal activity. They had not seen him using or possessing drugs. They observed no exchange of objects. They had no information from any citizen or informant about my client. What they knew was that he was spending time with three other people on a porch in this neighborhood. That is not illegal — and under Brown v. Texas, presence in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that a particular person is engaged in criminal conduct.

It is also not illegal for a person to remove himself from contact with the police. My client walked away; he did not run. He was not seen discarding anything. Illinois v. Wardlow distinguishes headlong flight from a refusal to cooperate, and this was not flight. When officers ordered him to stop and return to the porch, he complied. He did not act in any unusual or evasive manner.

The officers could have asked my client whether he would answer questions, or why he chose to leave. That would have been a consensual encounter. That is not what happened. What happened is that the officers seized my client within the meaning of the Fourth Amendment. Under Terry, a person is seized when an officer restrains his freedom to walk away, and no reasonable person in my client’s position — told to stop in a raised voice by an officer with his hand on his weapon, and then ordered back onto a porch — would have felt free to go.

The officers observed the blunt after that unlawful seizure. The firearm was recovered in a frisk that followed it. Under Wong Sun, the firearm is the fruit of the primary illegality and must be suppressed.”

Fact pattern two: evidence from a car search

The federal law of the vehicle stop and search

Your privacy rights do not evaporate when you get into a car, but they are narrower than in a home, and the rules that govern what officers may do after a stop are among the most heavily litigated in federal criminal practice.

The stop. Officers may stop a vehicle on reasonable suspicion that an occupant has committed or is committing a crime. They may also stop a vehicle for a non-criminal traffic or equipment violation, however minor — a moving violation, a seatbelt violation, a burnt-out lamp, an expired registration, an obstructed plate.

It is not difficult to find an infraction, and stops of this kind are frequently a means of investigating something else. That does not make the stop unlawful. What happens after the stop is where the litigation is.

The duration. This is the doctrine that has changed most in the last decade and the one most often decisive. Rodriguez v. United States, 575 U.S. 348 (2015), holds: “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.”

The Court identified when the authority ends: “Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” And it defined what is part of the mission: “an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

A dog sniff is not one of those. It “is a measure aimed at detecting evidence of ordinary criminal wrongdoing” and so “is not fairly characterized as part of the officer’s traffic mission.” And the test is not sequence but time: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff prolongs — i.e., adds time to — the stop.”

That reframing is why timelines matter so much in car cases. Dispatch logs, in-car video timestamps, and the time printed on the citation are the raw material of a Rodriguez motion.

Occupants. When a car is stopped, occupants may be questioned, ordered out, and briefly detained. Officers may not frisk everyone as a matter of course; a pat-down requires reasonable suspicion that the person is armed and dangerous. A protective search of the passenger compartment for weapons requires a comparable belief that a weapon is there and accessible.

Search incident to arrest. This is where the legacy understanding of car searches most often goes wrong, and Arizona v. Gant, 556 U.S. 332 (2009), is the reason. Gant holds: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court stated the negative directly: “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” And it explained why: “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”

The second prong — evidence of the offense of arrest — is narrow, and Gant said so on facts that recur constantly: “In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” Gant himself “was arrested for driving with a suspended license — an offense for which police could not expect to find evidence in the passenger compartment.”

Probable cause to search the vehicle. Separately from arrest, officers may conduct a full search of a vehicle where they have probable cause to believe it contains contraband or evidence of a crime, and containers within it that could hold the object of the search may be searched on that basis.

What your lawyer will ask you

• Were you the driver or a passenger?
• Who owns the vehicle?
• How many people were in the car?
• Where was the car when it was stopped? What sort of area?
• What time was it? Daylight, dusk, or dark?
• What reason did the officer give for stopping you?
• If it was a traffic violation, was it a moving violation or an equipment violation?
• Were you issued a citation? How long were you detained after it was issued?
• Did the officer stop the car using lights, a siren, or a roadblock?
• How many officers approached the car, and from which sides?
• What tone of voice did they use? What exact words do you remember?
• Did any officer have a weapon drawn?
• Did you feel free to leave? Did the others in the car?
• Was anyone asked to step out of the car? Who? Where were they placed?
• Aside from the driver, was anyone else asked for identification?
• Did anyone in the car make any unusual movement as the officers approached?
• Was everyone wearing a seatbelt?

And, if the vehicle was searched:

• Was anything unlawful visible in plain view?
• Was the search limited to the passenger compartment, or was the trunk searched?
• Did officers open closed or locked containers?
• Did anyone take the vehicle apart — panels, seats, spare-tire well?
• How long did the whole stop last, from the moment the lights came on to the moment the search began?

That last question is the Rodriguez question, and it is the one to answer as precisely as memory allows.

A common scenario

An officer stops a car for a loud muffler. The driver’s license is revoked, so the officer intends to arrest him. The officer does not arrest him immediately; instead, he tells the driver to wait at the curb while he searches the car. The officer goes through the interior and finds a quantity of a controlled substance in the glove compartment. A variation on the same pattern: the officer tells the driver he is under arrest and then either tells him to wait at the curb or places him, uncuffed, in the patrol car, and searches.

The driver’s lawyer moves to suppress.

The cross-examination

The point of this cross is to establish that the driver was, in every practical sense, under arrest and secured — and that the officer’s decision not to formalize it was a way around Gant.

On the certainty of arrest

Q: You pulled the car over for a loud muffler?

A: Yes.

Q: That is a non-criminal equipment violation?

A: Yes.

Q: You then determined that the driver’s license was revoked?

A: Yes.

Q: That is an offense?

A: Yes.

Q: It is standard practice in this situation to arrest the driver?

A: Yes.

Q: As soon as you knew my client’s license was revoked, your plan was to arrest him?

A: Yes.

On safety procedures when making an arrest

Q: When you arrest a person, you follow practices to ensure your safety and the safety of others?

A: Yes.

Q: One of those is to pat down the arrestee for weapons?

A: Yes, we do that.

Q: And you did it in this case?

A: Yes.

Q: Another is to call for a backup unit?

A: Yes.

Q: You called for backup?

A: I did, but at the time I asked your client to get out of the car it hadn’t arrived yet.

Q: So when you asked my client to get out and patted him down, you were the only officer present?

A: Yes.

Q: There were no passengers in my client’s car?

A: No.

Q: So the situation was one officer and one driver?

A: Yes — that’s why I didn’t want to arrest him yet. I was concerned he might become agitated and I didn’t have backup.

Q: He was not agitated when you pulled him over?

A: No, he was cooperative at that time.

Q: He was not agitated when you learned his license was revoked?

A: No.

Q: Or when you asked him to step out of the car?

A: No.

Q: Or when you patted him down?

A: No, he wasn’t.

On handcuffs

Q: You carry handcuffs?

A: Yes.

Q: You have handcuffed many people?

A: Yes.

Q: Your handcuffs were on your belt and readily accessible?

A: Yes.

Q: Handcuffing someone is more secure than leaving his hands free?

A: Yes, but I didn’t think it was necessary until backup arrived.

Q: You felt more secure with him uncuffed, even though you were alone?

A: Yes, because sometimes people become agitated when told they’re under arrest and cuffed.

Q: But he gave no sign he would act out?

A: No, nothing I can specifically recall.

Q: It is department policy to handcuff persons under arrest?

A: Yes, but I didn’t place your client under arrest until backup arrived.

Q: He was going to be arrested because he had committed an offense?

A: Yes, but I was waiting for backup.

Q: You were delaying the arrest?

A: I wasn’t delaying; I was following my normal procedure.

On the availability of the patrol car

Q: Your vehicle was directly behind the car you stopped?

A: Yes.

Q: You are able to place people in the back of your vehicle?

A: I can, but your client wasn’t under arrest yet.

Q: You can ask someone to sit in the back seat even when they have not been formally arrested?

A: Yes.

Q: The rear doors are locked from the inside?

A: Yes.

Q: A person in the back cannot get out on his own?

A: The doors have to be opened from the outside.

Q: And their freedom of movement is further restricted if they are cuffed?

A: Yes.

Q: You could have placed my client in your vehicle while waiting for backup?

A: I didn’t think it was necessary.

Q: But he was not free to leave, was he?

A: No, he wasn’t.

On training and written policy

Q: Your agency trained you on the actions to take when a person is arrested?

A: Yes.

Q: And you were given written notice of the standard procedures for an arrest?

A: Yes.

Q: In training, you were taught to cuff a person immediately after making an arrest?

A: Yes.

Q: And that is standard practice in the agency?

A: Actual practice varies. I do what I’ve found to be most effective.

Q: You were given a copy of the agency’s procedures on securing persons under arrest?

A: Yes.

Q: I’m showing you what has been marked as Defense Exhibit 1 — a copy of the agency’s procedures concerning securing persons under arrest.

A: Yes.

Q: And on page 2, it states that an arrestee should be handcuffed immediately for officer safety?

A: Yes.

The argument

“Your Honor, however this officer’s conduct is analyzed, this was an unlawful search and the evidence must be suppressed.

First, the search of the car cannot be justified as a protective search. There was no reasonable suspicion that my client was armed and that a weapon was accessible to him in the vehicle. He was outside the car, patted down, and compliant.

Second, it cannot be justified as a search incident to arrest. Under Arizona v. Gant, police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Neither is present. My client was at the curb, patted down, and not free to leave; he was not within reaching distance of anything. And the offense of arrest was driving with a revoked license — an offense for which, as Gant itself observed of an identical charge, the police could not expect to find evidence in the passenger compartment. The stop was for a loud muffler; the arrest was for a revoked license; the search was for neither.

Third, the officer cannot manufacture a search-incident-to-arrest justification by declining to complete the arrest. This officer testified that he intended to arrest my client from the moment he learned the license was revoked. He did not follow his agency’s written policy, which calls for an arrestee to be handcuffed immediately. He had handcuffs. He had a patrol vehicle. He used neither. My client was told to wait and was not free to go. On the officer’s own testimony, my client was secured and could not access the vehicle — Gant asks about the practical possibility of access, not the paperwork.

Finally, even if my client is treated as not under arrest, the officer had no independent authority to search the car after issuing a citation. There is no probable cause in this record — the officer identified nothing he saw, smelled, or heard that would supply it.

Whichever way this is analyzed, the search was unlawful and the evidence must be suppressed.”

Fact pattern three: evidence from a home search

The federal law of the home

Of all the places a search can occur, the home receives the greatest protection. Payton v. New York, 445 U.S. 573 (1980), states it as a rule with a physical boundary: “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” The Court held that the Fourth Amendment “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest,” and observed that “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”

Payton also decided a point that comes up constantly: what an arrest warrant permits. “For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” An arrest warrant for the resident permits entry into that resident’s own home to find him. It is not a search warrant, and Payton did not decide what it permits at a third party’s home.

The general rule, then, is that officers need a warrant to enter and search a home. There are recognized exceptions, and if officers entered without a warrant your lawyer’s first task is to identify which exception the government will invoke and then attack it. The recurring ones:

• Consent. Officers may enter and search if you, or another person with authority to consent, freely and voluntarily allow it.
• Search incident to arrest. Where officers arrest someone inside a home, they may search that person and the area within his immediate control — the area from which he might reach a weapon or destructible evidence. Officers may also conduct a limited protective sweep of a larger area for their safety, which is a look for people, not for evidence, and is limited accordingly.
• Plain view. If officers are lawfully present, they may seize contraband or obvious evidence of a crime that is in plain view.
• Exigent circumstances. Where officers have probable cause but circumstances make obtaining a warrant impracticable. The recognized categories are a threat to the safety of a person, an arrest in hot pursuit, a risk that evidence will be destroyed, and a likelihood the suspect will flee.

And note: even where officers had a warrant, the motion is not over. The warrant may be attacked as unsupported by probable cause, as insufficiently particular, or as improperly executed, and the search may be attacked as having exceeded the warrant’s scope. Where the attack is on the truthfulness of the affidavit, Franks supplies the procedure described above.

Consent is the exception that swallows the rule

If officers have no other basis to enter a home, they will ask for permission — and permission is granted far more often than not. The government’s account will be that consent was free and voluntary, given without pressure. Frequently the person consented not because they wanted to, but because they did not know they could refuse, were intimidated, or feared what would happen if they said no.

The fact that consent was given does not end the inquiry.

The government carries the burden. Bumper v. North Carolina, 391 U.S. 543 (1968): “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”

The test is the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973): “the question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”

Knowledge of the right to refuse is a factor, not a requirement. This surprises people and it needs to be said accurately rather than comfortably. Schneckloth: “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Officers are not constitutionally required to tell you that you may say no. That you were not told is evidence; it is not the end of the analysis.

Among the circumstances a court weighs: the number of officers present; the time of day or night; the mental condition and capacity of the person consenting; whether weapons were drawn or there was some other show of force; and whether consent was obtained through threats, promises, deception, or trickery.

Acquiescence to claimed authority is not consent. Bumper is the governing case and its language is unusually direct. The burden “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” And: “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. … The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper adds that “a search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid,” and that “the result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.”

A person may limit the scope of consent, and may withdraw it. Florida v. Jimeno, 500 U.S. 248 (1991): “A suspect may of course delimit as he chooses the scope of the search to which he consents.” The measuring standard is objective: “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” And the practical rule of thumb the Court supplied: “The scope of a search is generally defined by its expressed object.”

Jimeno also decided the point against the defendant on its facts, and honesty requires saying so: general consent to search a car for narcotics was held to extend to a closed paper bag on the floor, because “a reasonable person may be expected to know that narcotics are generally carried in some form of a container.” The Court declined to require officers to seek separate permission for each container. So a scope argument has to be built on what was actually said, not on a general intuition that the search went too far.

Consent given can also be revoked — by words, or by unequivocal conduct such as physically blocking a search.

What your lawyer will ask you

About the entry:

• Did you live at the residence? If not, were you an overnight guest? How often did you visit, and did you have a private space there?
• Did officers knock and announce? If they knocked, did they wait for someone to answer?
• Did they have a warrant, and if so did they read it to you or leave a copy?
• If there was no warrant, what did they say to justify entering?
• Were you restrained in any way, or told to remain in a particular spot?

If the government claims you consented:

• Did the officers ask for consent, or did they announce they were going to search?
• Did you affirmatively give consent, by words or gesture? What words?
• Did you want to let them in?
• Why did you open the door? Why did you let them inside?
• Did they identify themselves immediately?
• How many officers were there, and how were they dressed?
• Were weapons visible? Were hands on weapons? Were weapons drawn, and if so, pointed where?
• Did they say you had to let them in?
• Did they tell you that you could refuse?
• What did they say gave them the right to enter?
• What did they say would happen if you did not let them in?
• Did you ask whether they had a warrant? What did they say?
• Did they say they did not need a warrant? Did they say they would get one?
• What was their tone of voice? Did they say anything you found threatening?
• Did they threaten to arrest you? Did they say anything about your children?
• Were you fully clothed when they arrived, and if not, were you allowed to dress before opening the door?
• Once they were inside, were you free to move around the house or to leave?

If you were arrested in the home:

• Was the area searched within your reach, or did it extend further?
• Did officers open closets, cabinets, drawers, crawl spaces, or vents?
• Was contraband or evidence in plain view?

The first question in that list — whether you lived there — is the standing question, and it is asked first for a reason.

Example one: consent obtained by a statement about a warrant

The scenario. Officers observe a man driving while smoking a hand-rolled cigarette they believe to be marijuana. They follow the car. The driver parks and goes into a house, closing the door. Officers knock; a woman — call her Jane — asks who is there. The officers say they followed someone they believe was in possession of marijuana into the house and want to come in and speak with him. Jane refuses. The officers tell her that if she does not let them in, they will get a warrant. She then opens the door. Officers see marijuana on the living-room table and arrest her. The report states that Jane gave consent to enter. Jane says she opened the door only because the officers told her they would get a warrant and wait outside until they had it.

Jane’s lawyer moves to suppress.

The cross-examination. The object is to establish (a) that the officers had nothing approaching probable cause for a warrant, and (b) that consent followed, and was produced by, the statement about the warrant.

Q: You say you saw the driver smoking a hand-rolled cigarette?

A: I observed him smoking a blunt — a hand-rolled marijuana cigarette.

Q: You didn’t see the contents of that cigarette?

A: No. Based on my training and experience, I knew it to be marijuana.

Q: You never tested the contents?

A: No.

Q: The wrappers used for hand-rolled cigarettes of that kind are sold legally in shops, correct?

A: Yes, and then people fill them with marijuana.

Q: So your answer is yes — the wrappers are sold legally?

A: Yes.

Q: You then saw the driver enter the home?

A: Yes.

Q: You and your partner went to the home?

A: Yes.

Q: You were in uniform?

A: Yes.

Q: Your firearms were visible?

A: They were on our belts.

Q: You knocked?

A: Yes.

Q: A woman answered?

A: Yes, I heard a female ask what I wanted.

Q: She did not open the door at that time?

A: Not immediately. I told her we saw someone enter the home that we wanted to talk to and asked to come in.

Q: She did not open the door at that point?

A: Not then, but eventually she opened it voluntarily and gave us consent to enter.

Q: Before she opened it, she asked whether you had a search warrant?

A: Yes.

Q: You did not have one?

A: Correct.

Q: You told her you did not have a warrant, but that you could get one?

A: Yes.

Q: And after you told her that, she opened the door?

A: Yes.

The argument.

“Your Honor, the government contends the officers were entitled to enter my client’s home without a warrant because she consented. Consent must be free and voluntary, and the burden of proving that is the government’s — Bumper v. North Carolina says so in terms. That burden is not carried here.

My client refused entry. She allowed the officers in only after they told her that if she refused, they would get a warrant. Under Bumper, the government’s burden ‘cannot be discharged by showing no more than acquiescence to a claim of lawful authority.’ When an officer asserts the authority to search a home, he announces in effect that the occupant has no right to resist, and the situation is ‘instinct with coercion.’

And the officers had no probable cause for a warrant. They observed one individual smoking a hand-rolled cigarette in a car. They did not see its contents. They did not test it. They did not smell it burning. The wrapper itself is a lawful item sold in shops. They had no probable cause to arrest the person they saw smoking it, and no basis to enter a home in pursuit of him. As trained officers they knew that no judicial officer would have issued a warrant to search my client’s home on those facts.

My client’s consent was produced by a statement about a warrant the officers had no ability to obtain. That is not free and voluntary consent under Schneckloth’s totality-of-the-circumstances test. The entry was unlawful and the evidence found as a result must be suppressed.”

Example two: scope of consent limited, and consent revoked

The scenario. Joe is charged with possession with intent to distribute. Officers report seeing several people enter a home and leave after brief visits, and suspect drug sales. They knock; when Joe answers they ask whether they can come in and ask about the visitors and look in his living room. Joe lets them into the living room. From there officers can see a small scale and a box of plastic bags in the kitchen. No contraband is visible. Officers ask whether they can look in the kitchen cabinets, and Joe agrees; they open cabinets and drawers and find nothing unlawful. Joe then says he needs to leave for work and asks them to leave. An officer instead goes into the bathroom without asking, opens the vanity, and finds controlled substances, which he seizes. At the hearing the officer testifies that Joe consented to a search of the home.

The cross-examination. The object is to pin the officer to what his own report says about the scope, and to fix the moment consent was withdrawn.

Q: You saw several people enter and leave my client’s residence?

A: Yes, and we believed drug sales were taking place there.

Q: You did not observe anyone coming or going in possession of narcotics?

A: No, but based on the traffic I had reason to believe that was what was occurring.

Q: You did not see anyone exchange packages or money?

A: No.

Q: You did not get a warrant to search my client’s home?

A: No. I approached the residence for a knock-and-talk and your client invited us in.

Q: You knocked and asked permission to come in and talk to him, and he said yes?

A: Yes.

Q: Once inside you spoke with him in the living room?

A: Yes, and from the living room I could see a scale and a box of plastic bags in plain view in the kitchen, which I know from training and experience are used to weigh and package narcotics.

Q: You asked my client for permission to look in his kitchen?

A: We asked if we could look around and he consented to a search.

Q: What you asked was whether you could look in the living room and the kitchen, and he agreed to let you look in those rooms?

A: He gave us consent to search his home.

Q: I’m showing you what has been marked Defense Exhibit 1 — this is your report, written after the search?

A: Yes.

Q: You wrote it the same day, while events were fresh?

A: Yes.

Q: Please read it. What you wrote was that my client gave you permission to search his living room and kitchen, correct?

A: That’s what I wrote, but my recollection is that he gave us consent to search his home.

Q: You looked inside drawers and cabinets in the kitchen?

A: Yes.

Q: You found no drugs or contraband in the kitchen?

A: I did not see anything other than the scale and bags.

Q: And you saw nothing unlawful in the living room?

A: I did not.

Q: After you searched the living room and kitchen, my client told you he had to go to work and asked you to leave?

A: He stated he was going to have to leave and wanted us to leave with him.

Q: But instead of leaving, you went into the bathroom and opened the vanity?

A: Pursuant to his consent to search, I also looked in the bathroom, and I observed the controlled substances in the vanity drawer.

Q: You did that after he told you he had to leave and asked you to leave as well?

A: Right after he said he had to go to work, I told him I’d just be a minute, went into the bathroom to continue my search, found the drugs, and placed him under arrest.

The argument.

“Your Honor, when a person consents to a warrantless entry of his home, that does not imply consent to a full search of the property. The Supreme Court held in Florida v. Jimeno that a suspect ‘may of course delimit as he chooses the scope of the search to which he consents,’ and that the measure is objective reasonableness — what a typical reasonable person would have understood from the exchange between the officer and the suspect.

The exchange here is documented in the officer’s own report, written the day of the search. He wrote that my client gave permission to search the living room and the kitchen. That is the exchange. Jimeno also tells us the scope of a search is generally defined by its expressed object, and the expressed object here was two named rooms.

Consent is also revocable. My client withdrew it unequivocally: he told the officers he had to go to work and asked them to leave his home. At that point they had found nothing unlawful. What they had seen was a kitchen scale of a kind sold in ordinary shops and plastic bags available at any grocery. Those are common household items used for lawful purposes by millions of people. Observing them creates no probable cause and no independent basis for a warrantless, non-consensual search.

The bathroom search occurred after consent was withdrawn, in a room never named, on no independent authority. The evidence seized as a result of that search must be suppressed.”

Fact pattern four: evidence from a police interrogation

The federal law

If you made incriminating statements to law enforcement, that is not the end of the case, and it is not the end of the analysis. The grounds for challenging a statement are set out above. This fact pattern works through the one that recurs most: a station-house interrogation conducted without warnings, on the theory that the person was not in custody.

Challenges to the admissibility of a statement generally arise in two settings. Where the statement was made during a vehicle stop, or at a home or business, the government’s position will be that no arrest had yet occurred. Where the statement was made at a law-enforcement facility, the position will be that the person came in voluntarily and had not been arrested. In both, the fight is about custody, and the analysis is Miranda as refined by Howes v. Fields: would a reasonable person have felt at liberty to terminate the questioning and leave, and did the environment present the same inherently coercive pressures as station-house questioning?

What your lawyer will ask you

About the encounter:

• How many officers approached you, and how many others were present?
• What did they tell you to do?
• Did they order you to remain where you were?
• What tone of voice did they use?
• Did you try to leave, or ask to leave? Did they block you?
• Were you asked to put your hands up, or on a vehicle?
• Did anyone present refuse to comply, and what happened to them?
• Were weapons pointed at anyone? Were they drawn, or were hands on them?
• Were you handcuffed? Were you put in the back of a locked vehicle?
• Were flashlights shone on you?
• Were you patted down?
• Did officers take your driver’s license or other documents and keep them?
• Did you feel free to refuse a request? Why or why not?
• Were you questioned inside a police vehicle?
• Were you ever told you were free to leave?

If you were questioned at a law-enforcement facility:

• Were you brought in through the entrance used by the general public?
• Did you use public lifts or stairwells?
• What were you doing in the 24 hours before the questioning? Be specific: when did you last eat, when did you last sleep, had you taken any medication, drugs, or alcohol? These details bear on your capacity to withstand a psychologically coercive interrogation.
• Describe the room. What furniture was in it? What was the lighting? Was it a comfortable temperature?
• Was the door open, closed, or locked during questioning?
• Were you left alone in the room, unable to leave because the door was locked? For how long?
• During questioning, did the officers move around the room? Did they move closer to you? Did they touch you, even in an ostensibly comforting way?
• Did they position themselves between you and the door?
• Did you have access to water, food, or a bathroom?
• Were you allowed to go to the bathroom alone, or were you escorted?
• Were you allowed to use a phone? Were you allowed to keep your own phone?
• Did you ask to make a call?
• Did you ask for a lawyer? How did they respond?
• Were you told there would be negative consequences if you spoke to a lawyer?
• At any point did you tell them you did not want to talk any more? What words did you use, and how did they respond?
• If you did not assert your rights at the outset, why did you initially agree to talk, and why did you try to stop the questioning when you did?
• When did you make your first admission, and why?

A common scenario

Agents suspect a man — call him Mr. Jones — of involvement in a shooting outside a business. Four officers come to his home; his parents let them in. The officers tell Mr. Jones to come to the station for questioning about a shooting. They do not tell him he can refuse. They drive him there in the back of a vehicle whose rear doors open only from the outside. Two officers ride in front; a second vehicle with two more officers follows. They enter the building through a non-public entrance and use a lift not available to the public, arriving at an interview room inside a secured area. Only personnel with keys can enter the area and the room.

Investigators question Mr. Jones for four hours without warnings. They take two breaks. During both, he is left alone, locked in the room. The first break lasts sixty minutes, during which investigators review the case and learn that he appears on time-stamped video from the business shortly before closing, behaving in a way they describe as suspicious. He has denied involvement and claimed an alibi. When they return they tell him he was seen on the video and that they have strong proof he was the shooter. He continues to deny involvement.

The second break, an hour later, is for the bathroom. There is a public bathroom in an unsecured hallway; the investigators take him instead to a bathroom in the secured lock-up area and return him immediately to the locked room. On their return they tell him they know he committed the offense and that if he does not tell them the truth they will not be able to tell the prosecutor he was cooperative and remorseful, and that this will look bad for him. He admits being present but says he saw an unknown person do the shooting. They tell him he is not being truthful because a witness identifies him as the shooter. He says the witness is wrong; he was only the lookout. At that point investigators tell him he is under arrest and read him the warnings. He says he does not want to answer any more questions and wants a lawyer. Questioning stops.

At the suppression hearing the investigators testify that Mr. Jones came in voluntarily and was not under arrest until after he admitted being the lookout — and that this is why he was not advised of his rights until then.

The cross-examination

The object is to build the objective record of custody: what the investigators knew, where they took him, how he got there, what he could and could not do, and what they told him.

On the seriousness of the investigation

Q: You were investigating a homicide?

A: Yes.

Q: A serious offense?

A: Yes.

Q: It is important to locate and arrest a person responsible for something like that?

A: It’s important to arrest all persons who commit dangerous criminal acts.

Q: In a case like this you would want to make an arrest as soon as you were able?

A: If we have probable cause to arrest the person, yes. But not if we don’t have probable cause, counsel.

Q: So you agree — if you had probable cause, you would make an arrest as soon as possible?

A: Yes.

On what the investigators already knew

Q: There was an eyewitness?

A: Yes.

Q: That person described the person they saw?

A: Yes.

Q: Height?

A: Yes.

Q: Build?

A: Yes.

Q: Race?

A: Yes.

Q: All parts of the description matched Mr. Jones?

A: Yes, but that wasn’t sufficient for an arrest.

Q: The witness said the person was alone?

A: Yes.

Q: And got into a car matching Mr. Jones’s car?

A: Yes.

Q: The witness saw two letters of the plate, and Mr. Jones’s plate contains those two letters?

A: Yes.

Q: Based on that information you had a strong suspicion Mr. Jones was the shooter?

A: A suspicion, yes, but not enough for an arrest.

On the choice of location

Q: You went to Mr. Jones’s house?

A: Yes.

Q: To question him about the homicide?

A: Yes.

Q: You were allowed inside?

A: Yes.

Q: The house had a living room, a dining room, and a kitchen?

A: Yes.

Q: All with seating where an interview could be conducted?

A: Yes, but it wasn’t private; there were other people in the home.

Q: Those other people were his parents?

A: Yes.

Q: They were cooperative?

A: Yes.

Q: You did not ask them whether you could meet with their son privately at the home?

A: No. We thought it best to have him come to the station, to a private room.

Q: You chose not to question him at his home?

A: We asked him to come to the station, where there’s a better environment for interviewing.

Q: You chose not to question him in a vehicle?

A: No; a room at the department is a better environment.

Q: Witnesses are sometimes questioned in vehicles?

A: Occasionally.

Q: You have questioned witnesses in vehicles?

A: Yes, but I don’t consider that ideal.

Q: So your answer is yes?

A: Yes.

On transport

Q: You had Mr. Jones taken to the station?

A: We had a uniformed officer drive him in another vehicle.

Q: You did not ask him whether he wanted to drive his own car?

A: No. We were concerned there was evidence in that car and we were not going to allow him to drive it.

Q: Because of that concern, you kept the car under observation?

A: Yes.

Q: He rode in the back of the vehicle he was transported in?

A: Yes.

Q: The back of that vehicle locks automatically?

A: Yes.

Q: So a person riding in the back cannot get out until he is let out?

A: He was not locked in against his will.

Q: My question is whether a person riding in the back can let himself out, or whether an officer is required to open the door. An officer is required, correct?

A: Yes.

Q: When you told him to come to the station, you told him he would be given a ride?

A: Yes.

Q: You did not tell him he would be locked in the back?

A: That didn’t seem necessary.

Q: So your answer is no, you did not?

A: I did not.

On the room

Q: A better environment, for you, is an interview room at the department?

A: Yes; the rooms are private and conducive to interviewing.

Q: The rooms are small, with block walls?

A: Yes.

Q: With a fluorescent light overhead?

A: Yes.

Q: No windows?

A: The rooms do not have windows.

Q: Each room has a metal ring on the wall to which a person can be handcuffed?

A: We didn’t handcuff Mr. Jones to the wall. He was never handcuffed.

Q: But the room has the ring?

A: It does, but we didn’t use it.

Q: The door locks automatically when it closes?

A: Yes.

Q: You have a key?

A: Yes.

Q: The door was closed while you were questioning him?

A: Yes, but Mr. Jones was free to go.

On “free to go”

Q: You never specifically told him he was free to go?

A: We asked him to come with us to be interviewed. He was not under arrest.

Q: My question is: once he was in the room with you, you never told him he was free to go?

A: It didn’t come up.

Q: Mr. Jones did not have a key to the room?

A: No, he didn’t.

Q: The only people with keys are department personnel?

A: Yes.

On entry into the building

Q: He was taken from the vehicle into the interview floor of the department?

A: Yes.

Q: The vehicle was parked in the garage under the building?

A: Yes.

Q: You went up in the lift?

A: Yes.

Q: Only department personnel have access to that entrance?

A: Yes.

Q: He was not brought to the entrance the public uses?

A: That entrance is more convenient.

Q: He was not dropped at the public entrance and met there by you or another investigator?

A: No.

Q: He was taken up in the lift used to transport arrested persons?

A: Yes, but he was not under arrest.

Q: And to your knowledge, nobody told him he was not under arrest while he was being taken up in that lift?

A: No.

On the breaks

Q: During the questioning you took breaks?

A: Yes.

Q: During the first, Mr. Jones remained in the room while you and your partner reviewed additional evidence?

A: Yes.

Q: During that break the door to the room was closed?

A: Yes.

Q: He was locked in the room.

A: The door was locked, but he knew we were returning shortly.

Q: The door was locked and he had no way to leave while you were gone?

A: The door was locked and he never asked to leave.

Q: You never offered him the choice of waiting anywhere else?

A: We didn’t. We told him we needed a break and would be back shortly.

Q: There is no phone in the room?

A: No, there isn’t.

Q: No access to a bathroom from inside the room?

A: Before the break we asked whether he needed the bathroom and he said no.

Q: When a person is alone and locked in an interview room, he has no access to a phone or a bathroom, correct?

A: Correct.

Q: You took the break to do something that would help you in the questioning?

A: We did not believe he was being truthful and we wanted further case information.

Q: So while you went to get more information, you left him alone and locked in the interview room.

A: He stayed in the room voluntarily while we took the break.

Q: You didn’t take him out to a waiting area open to the public?

A: He didn’t ask to leave.

Q: You didn’t offer to take him there?

A: No.

Q: You asked whether he wanted anything to eat or drink?

A: Yes, we offered both.

Q: He wanted a soft drink?

A: Yes.

Q: You didn’t take him to the machine in the public hallway to get it?

A: No; we asked what he wanted and brought it to him.

Q: So you didn’t allow him to leave the room to look at what was available?

A: It wasn’t necessary.

Q: You didn’t let him leave the room, correct?

A: It wasn’t necessary.

Q: You brought the drink at the end of your break?

A: Yes.

Q: The break was an hour?

A: Yes.

Q: So he sat alone, locked in a room, for sixty minutes?

A: He remained there until the end of the break.

On the bathroom

Q: Later he needed the bathroom?

A: At one point he said yes, and we allowed him to use it.

Q: You escorted him?

A: Yes.

Q: To the bathroom in the lock-up?

A: Yes.

Q: Which is inside the secured, locked area?

A: We took him to the lock-up bathroom.

Q: There is a public bathroom outside the secured area, correct?

A: Yes.

Q: On the same floor?

A: Yes, but the lock-up bathroom is close.

Q: The public one is also close, correct?

A: It was more convenient to use the one in the back.

Q: So during that second break you kept him inside the secured, locked area as well?

A: He used the lock-up bathroom.

Q: You never took him outside the locked area?

A: No, we didn’t.

On the pressure applied

Q: When you questioned Mr. Jones, you wanted him to admit he was the shooter?

A: We wanted him to tell the truth.

Q: You believed he was involved?

A: Yes.

Q: You told him you had a witness who saw him do the shooting?

A: Yes.

Q: You told him you had seen video from the business taken shortly before the offense?

A: Yes.

Q: You told him you identified him on that video?

A: Yes.

Q: You also told him the Assistant United States Attorney would be reviewing the case and deciding what to do?

A: He asked what was going to happen with the case, and we told him we don’t make charging decisions — the prosecutor decides whether a person is charged.

Q: You also told him the prosecutor would look more favorably on him if he admitted involvement?

A: I told him it would be in his best interests to cooperate, and that if he was truthful and cooperative we would bring that to the prosecutor’s attention.

On what happened when he changed his account

Q: When you began questioning him, he denied being present?

A: Yes.

Q: He maintained that denial for a lengthy period?

A: Yes.

Q: He also said he had an alibi?

A: Yes.

Q: You told him you didn’t believe him?

A: We told him he was not being truthful.

Q: Eventually he changed his account?

A: Yes.

Q: He told you he was present but only as a witness?

A: Yes.

Q: You told him again he was not being truthful?

A: Yes.

Q: You continued to question him?

A: Yes.

Q: All of this took place before you read him his rights?

A: Yes.

Q: By the time he changed his account about his whereabouts, you had already spent several hours questioning him?

A: Yes.

Q: At the point he told you he was in fact present, you had probable cause to arrest him for making false statements to federal investigators?

A: Yes, but we did not arrest him. Our purpose was to obtain the truth about the shooting.

Q: But he had given two different accounts, which could form the basis for that arrest?

A: Yes.

The argument

“Your Honor, Mr. Jones was in custody at the time he was questioned. Under Miranda, custodial interrogation means questioning after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. There does not have to be a formal arrest. Under Howes v. Fields, the first question is whether, in light of the objective circumstances, a reasonable person would have felt he was not at liberty to terminate the interrogation and leave — and the second is whether the environment presented the same inherently coercive pressures as station-house questioning. Both are satisfied here, and the second is satisfied because this was station-house questioning.

The investigators testified that they asked Mr. Jones to come to the station. They never told him he could refuse. Several armed officers came to his home. In the absence of being told he did not have to go, no reasonable person would have understood that he was free to decline.

He was then transported — not by the investigators who wanted to speak with him, but by a uniformed officer, in the back of a vehicle he could not open from the inside. The vehicle was parked in a secure garage. He was taken into the building not through the public entrance but through the entrance and the lift used for prisoners. He was placed in a locked interview room with no windows and a ring on the wall for handcuffing. He had no key. He had no phone. When the investigators took a break, he was left locked in that room, alone, for sixty minutes. He was not offered a public waiting area. When he wanted a drink, he was not permitted to walk to the machine in the public hallway. When he needed the bathroom, he was escorted not to the public bathroom on the same floor but to the one inside the secure lock-up.

The questioning went on for several hours. He repeatedly denied involvement. The investigators did not let up. They told him he was lying. They told him a witness identified him as the shooter. They told him they had video. And they told him that if he did not tell them the truth, they would not be able to tell the prosecutor he was cooperative and remorseful, and that this would look bad for him. No reasonable person in that position — told there is a strong case against him and that things will go badly if he does not admit involvement — would believe the investigators were simply going to let him go home.

Consider also the point at which the investigators concede they had grounds to arrest. On their own testimony, once Mr. Jones told them his account of his whereabouts had not been truthful, they had a basis for an arrest. They were not going to release him at that point, and they do not claim they would have.

Applying Howes, the objective circumstances here are the circumstances of a person in custody, and the environment is the paradigm of the coercive environment Miranda was addressed to. The warnings came only after the admissions the government now wants to use. Mr. Jones’s statements must be suppressed.”

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: Notice how little of that argument is about law and how much of it is about the physical details of the building. That is the work. Custody is decided on objective circumstances, and objective circumstances are established by a witness admitting, one question at a time, that there was a public entrance he did not use, a public bathroom he did not use, and a waiting room he did not offer. None of those facts appears in a police report. They come from the client’s memory and from the cross-examination that memory makes possible.

A sample federal motion to suppress

What follows is an illustrative motion in a federal case — a vehicle stop for an equipment violation followed by a search of the car. It is included so that a reader can see the shape of the document: what it asks for, what facts it pleads, what authority it relies on, and where it puts the burden.

It is an illustration, not a form. Local rules vary by district, several districts require a separate memorandum of law, some judges require a sworn declaration before an evidentiary hearing will be set, and the facts of any real case will bear no resemblance to these. Nobody should file a document based on this. It is here to make the work visible.

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IN THE UNITED STATES DISTRICT COURT FOR THE __________ DISTRICT OF __________

UNITED STATES OF AMERICA,

v.

[DEFENDANT NAME], Defendant.

Case No. __________

DEFENDANT’S MOTION TO SUPPRESS EVIDENCE (No Reasonable Suspicion for Search of Person or Vehicle)

Defendant [NAME], by and through undersigned counsel, respectfully moves this Court pursuant to Fed. R. Crim. P. 12(b)(3)(C) and the Fourth and Fifth Amendments to the United States Constitution to suppress as evidence the controlled substances, packaging materials, and any statements attributed to the Defendant, together with all leads and evidence derived therefrom, seized or obtained on or about [DATE]. Defendant requests an evidentiary hearing at which the United States must establish the lawfulness of the stop, the seizure of the Defendant’s person, the search, the arrest, and the seizure of the items in question.

AS GROUNDS THEREFOR, THE DEFENDANT STATES:

1. On [DATE] at approximately 9:02 p.m., Officer __________ stopped a vehicle operated by the Defendant for a defective passenger-side lamp. The Defendant stated he was unaware the lamp was out. The officer requested a driver’s license, and the Defendant produced a valid license. The officer asked whether the Defendant had any drugs or weapons on his person, and the Defendant said he did not. The Defendant was directed out of the vehicle and told to stand at the rear of it. Officers then searched the vehicle. Officer __________ searched beneath the driver’s seat and reports recovering a quantity of a controlled substance.

1. Standing. The Defendant had a legitimate expectation of privacy in the vehicle and its contents and may therefore challenge the stop of the vehicle, the search of the vehicle, the search of his person, and his continued detention. Rakas v. Illinois, 439 U.S. 128, 143 (1979) (capacity to claim Fourth Amendment protection turns on “whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”). The facts establishing that interest are set out in the accompanying declaration.

1. The stop was extended beyond its lawful scope. A seizure justified only by an observed traffic violation “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation,” and “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Rodriguez v. United States, 575 U.S. 348, 350–51, 354 (2015). The Defendant produced a valid license within moments of the stop. Nothing thereafter was tied to the equipment violation.

1. There was no reasonable suspicion supporting a protective search of the vehicle. A protective search of a passenger compartment is permissible only where the officer “possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049 (1983); see also Terry v. Ohio, 392 U.S. 1, 21 (1968). The Supreme Court was explicit about the limits of that authority: “We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop.” Long, 463 U.S. at 1049 n.14.

1. No such facts exist here. The Defendant was accused of a minor equipment violation, not a crime. He engaged in no conduct giving rise to a reasonable suspicion that he possessed a weapon. He was not observed engaging in any threatening or unlawful activity before or after the stop. He did not flee. He made no furtive movement. He complied with every direction given. The officers can identify no “specific and articulable facts” that would reasonably have led them to believe the Defendant presented a risk of harm to themselves or to others, and therefore lacked reasonable suspicion to believe a weapon was present in the vehicle.

1. Neither location nor generalized nervousness supplies the missing suspicion. Presence in an area associated with drug activity, standing alone, is not a basis for concluding that a particular individual is engaged in criminal conduct. Brown v. Texas, 443 U.S. 47, 52 (1979). And the Fourth Amendment requires that a seizure “be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual.” Id. at 51.

1. The search cannot be sustained as incident to arrest. No arrest preceded the search. Even had one occurred, “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351 (2009). The Defendant was standing at the rear of the vehicle, outside the passenger compartment, and the only offense identified — a defective lamp — is one for which no evidence could be expected inside the car. See id. at 344.

1. The derivative evidence must be suppressed as well. Any statements attributed to the Defendant, and any evidence or leads derived from the unlawful search, are subject to suppression as fruits of the primary illegality. Wong Sun v. United States, 371 U.S. 471, 484, 488 (1963).

WHEREFORE, the Defendant respectfully requests that this Court set this matter for an evidentiary hearing and, following that hearing, enter an order suppressing the evidence and statements identified above and all fruits thereof.

Respectfully submitted,

______________________ [ATTORNEY NAME] Bar No. [______] Counsel for Defendant [ADDRESS] · [TELEPHONE] · [EMAIL]

Dated: [DATE]

CERTIFICATE OF SERVICE

I certify that on [DATE] I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification to counsel of record for the United States.

______________________ [ATTORNEY NAME]

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Four things about that document are worth naming, because they are the things that most often go wrong when a general criminal-practice form is used in a federal case.

The caption is a United States District Court, and the opposing party is the United States of America. There is no state court, no state constitution, and no county prosecutor in this case. The prosecutor is an Assistant United States Attorney.

The rule cited is Fed. R. Crim. P. 12(b)(3)(C). That is what makes it a pretrial motion subject to the court’s scheduling order.

The constitutional provisions invoked are the Fourth and Fifth Amendments — not the Fourteenth. The Fourteenth Amendment is the vehicle by which those protections apply against state action. In a federal prosecution challenging the conduct of federal officers, it does no work, and reciting it signals a form that was written for a different courtroom.

The authority is federal. Every case cited above is a decision of the Supreme Court of the United States, and each one has been read rather than borrowed. In a federal district court, a state supreme court’s construction of its own constitution is not authority for what the Fourth Amendment requires. It may be persuasive on nothing at all.

One further note on Long and Gant. Long was decided in 1983 and describes a “bright line” drawn in New York v. Belton authorizing an automatic search incident to custodial arrest. Gant, in 2009, held that “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” A motion that cites Long for its protective-search holding is on solid ground; a motion that relies on Long’s description of Belton is citing a proposition later decisions have narrowed. That distinction is exactly the sort of thing a citator check is for, and it is why every authority in a real motion is checked rather than copied.

Part two: the trial

The order of a federal criminal trial

If the case does not resolve before trial, the proceedings unfold in a fixed sequence:

1. Jury selection (voir dire), followed by swearing the jury and the court’s preliminary instructions
2. Opening statements — government first, then the defense
3. The government’s case-in-chief — direct examination of each government witness, followed by defense cross-examination
4. Motion for judgment of acquittal at the close of the government’s evidence, under Rule 29(a)
5. The defense case, if the defense puts one on
6. The government’s rebuttal case, if any
7. Renewed motion for judgment of acquittal at the close of all the evidence
8. The charge conference — the parties and the court settle the jury instructions
9. Closing arguments — in the order set by Rule 29.1
10. Jury instructions
11. Deliberations
12. Verdict, and polling of the jury if requested

Two of those steps are frequently missing from general descriptions of a criminal trial and both are federal-specific. The Rule 29 motion is made twice — once at the close of the government’s evidence and again at the close of all the evidence — and it can be made a third time after the verdict. And the order of closing arguments is not a matter of local custom: it is fixed by rule, and the government both opens and closes.

Jury selection

Who does the questioning

In many state courts, lawyers conduct extended questioning of the jury panel. In federal court, that is up to the judge. Fed. R. Crim. P. 24(a) provides: “The court may examine prospective jurors or may permit the attorneys for the parties to do so.”

Where the court conducts the examination — which is common in federal district courts, and in some districts is universal — the rule requires the court to give counsel a route in: “If the court examines the jurors, it must permit the attorneys for the parties to: (A) ask further questions that the court considers proper; or (B) submit further questions that the court may ask if it considers them proper.”

The practical consequence is significant, and it shapes how a federal trial lawyer prepares. In a district where the judge does the questioning, the defense’s influence over voir dire is exercised in writing, weeks earlier, in a set of proposed voir dire questions filed with the court. A question that is not submitted is very often a question that is never asked. This is one of the places where federal practice differs most sharply from state practice, and where a lawyer who does not know the judge’s practice is at a real disadvantage.

What jury selection is for

A panel of prospective jurors — the venire — is summoned to the courthouse. From that panel, twelve jurors and a number of alternates are selected.

“Selection” is a slightly misleading word. Neither side gets to assemble an ideal jury. The task is to identify and remove the people whose views make it impossible for them to decide the case on the law and the evidence. That is done by getting people to talk, and then acting on what they say.

Challenges for cause and peremptory challenges

There are two ways to remove a prospective juror, and they work differently.

A challenge for cause asserts that a specific juror cannot be fair — because of a relationship to a party or witness, an expressed inability to follow the law, a fixed view about the case or about people accused of this kind of offense, or a personal circumstance that makes service impossible. There is no numerical limit on challenges for cause, but each one is decided by the judge, and the judge frequently rehabilitates a juror by asking whether, notwithstanding the view expressed, the juror can set it aside and follow the instructions. A “yes” to that question usually defeats the challenge. Because cause challenges are granted at the court’s discretion, they are not a substitute for peremptories.

A peremptory challenge removes a juror without a stated reason, subject to the constitutional constraints described below. In federal criminal cases, the numbers are set by Fed. R. Crim. P. 24(b) and they are not symmetrical:

Case type	Government	Defense
Felony (punishable by more than one year)	6	10, jointly
Capital, where the government seeks death	20	20
Misdemeanor (fine, or one year or less, or both)	3	3

The felony numbers are the ones to remember, and the two features people get wrong are worth stating explicitly. The defense figure is ten and the government’s is six — the rule provides that “the government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year.” And the defense figure is a joint number. Two co-defendants share ten unless the court, in its discretion, allows more. They do not get ten each.

Alternates. Rule 24(c) permits the court to “impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.” Additional peremptory challenges come with them, on a sliding scale: one additional challenge where one or two alternates are impaneled, two where three or four are impaneled, three where five or six are impaneled. Those additional challenges “may be used only to remove alternate jurors.”

Batson: the limit on peremptory challenges

A peremptory challenge does not require a reason, but it may not be exercised for certain reasons. Batson v. Kentucky, 476 U.S. 79 (1986), holds that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”

Batson set out a burden-shifting procedure. The party objecting must first make a prima facie showing — under Batson as decided, that the defendant “is a member of a cognizable racial group,” that peremptories were used “to remove from the venire members of the defendant’s race,” and that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”

Then: “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.”

Two things about the second step deserve candor. The bar for the explanation is low — the Court said “the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” But it is not nothing: “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.”

Batson also framed the right precisely, and the framing matters: “a defendant has no right to a ‘petit jury composed in whole or in part of persons of his own race.’ … But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.”

The doctrine did not stop with Batson, and three later decisions extended it in ways that are directly relevant to a federal trial.

Standing. Powers v. Ohio, 499 U.S. 400 (1991), holds “that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.” The defendant need not be of the same race as the struck juror.

Gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), holds that “the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man.” The procedure is the same as Batson’s: a prima facie showing, then an explanation “based on a juror characteristic other than gender” that “may not be pretextual.” J.E.B. also noted that “strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.”

The defense is bound too. Georgia v. McCollum, 505 U.S. 42 (1992), holds “that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” The prosecution may raise the objection, and if it makes out a prima facie case, “the defendants must articulate a racially neutral explanation.” McCollum also disposed of the argument that this interferes with the defense: it held that the prohibition does not violate the Sixth Amendment right to effective assistance or to an impartial jury, and noted that where an explanation would reveal privileged material or strategy, “an in camera discussion can be arranged.”

McCollum also made a point about the nature of the challenge itself that is easy to miss and worth keeping in view: “peremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial.”

What about religion, ethnicity, or other characteristics? The Supreme Court decisions above address race and gender. J.E.B. expressly did not decide whether peremptory challenges based on religious belief are prohibited, and McCollum likewise noted the question of religion as one it was not reaching. Circuit law has developed in this area. A page that flatly asserts that peremptory strikes may not be based on religion is stating more than the Supreme Court has held, and a lawyer raising such an objection should be working from the law of the circuit in which the trial is taking place.

The questions that get asked

Whether the judge asks them or counsel does, the subject matter of federal voir dire is the same, and the categories below are the ones a defense lawyer will want covered — in the court’s questions if possible, in submitted supplemental questions if not.

Questions about the burden of proof and the presumption of innocence. These are designed to identify jurors who would hold the government to a lower standard than the law requires, or the defense to a burden it does not carry.

• In our system, a defendant is presumed innocent unless and until the government proves guilt beyond a reasonable doubt. How do you feel about that?
• Because the defendant is presumed innocent, he is not required to testify or to present any evidence at all. How do you feel about that?
• Do you agree or disagree with this statement: “A defendant who does not testify is probably guilty”?
• Do you agree or disagree with this statement: “It is better for ten guilty people to go free than for one innocent person to be wrongly convicted”?

Questions about attitudes toward the criminal justice system. Answers here tend to identify jurors who place a high value on obedience to authority, and who in a criminal trial are more likely to credit the government’s witnesses.

• Do you agree or disagree: “The rights of people accused of crimes are better protected than the rights of victims”?
• Do you agree or disagree: “Too many guilty people escape punishment because of legal technicalities”?
• In general, does the criminal justice system treat people convicted of crimes too harshly, about right, or too leniently?
• Are you a member of any victims’ rights organization?

Questions about attitudes toward crime. Jurors who see crime as having complex social causes are, as a general matter, more open to a defense case than those who see it in purely individual terms and favor simple, punitive responses.

• How serious a problem do you think crime is today — in the country, and where you live?
• In your opinion, what are the major causes of crime?
• What do you think are some solutions?

Questions about experience with law enforcement. These matter especially in a federal case, where the government’s witnesses are usually agents and where the jury will be asked to weigh an agent’s testimony against a civilian’s.

• Have you ever witnessed a crime, or been questioned by law enforcement about one?
• Have you ever reported a crime, or called for police assistance?
• Have you, or has anyone close to you, ever been the victim of a crime?
• Do you have confidence in the ability of law enforcement officers to do their jobs?
• Do you think a law enforcement officer’s testimony is more credible, less credible, or no different from any other witness’s?

That last question is not decorative. In many federal cases the government’s proof is delivered largely by agents, and a juror who begins with the view that an agent is automatically more credible than any other witness has, in practical terms, already shifted the burden. Federal pattern instructions in most circuits address the point by telling jurors that a law enforcement witness’s testimony is to be evaluated by the same standards as any other witness’s, and a defense request for that instruction is routine.

Case-specific questions. Depending on the charges and the anticipated evidence:

• In a drug case, jurors’ views about drug offenses and their personal experience with addiction in their families.
• In a firearms case, attitudes about firearms and firearms regulation.
• In a fraud or white-collar case, experience in the relevant industry, and views about regulatory enforcement.
• Attitudes toward the defense you intend to raise. If the defense turns on the reliability of an eyewitness identification, for instance: “Have you ever waved at someone you were sure you recognized, and then realized it was a stranger?”
• Evidence the jury will hear that reflects badly on the defendant and that the court has already ruled admissible — a prior conviction that is an element of the offense, for example.

Your role during jury selection

You have the right to be present, and it is not optional in the sense people assume. Fed. R. Crim. P. 43(a) provides that the defendant “must be present at … every trial stage, including jury impanelment and the return of the verdict.” Presence at jury selection is not a courtesy; it is a requirement of the rule and a right that belongs to you.

Rule 43 also sets out how that right can be lost. A defendant who was initially present at trial waives the right to be present “when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial,” and “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.”

Beyond the rule, there is a practical reason to engage. You may perceive a prospective juror’s warmth or hostility that your lawyer does not. And the time you spend in the same room as the panel — attentive, respectful, present — is the jury’s first extended look at you as a person rather than as a name in an indictment.

That cuts both ways, which is why the counsel offered here is narrow and firm: do not react to what prospective jurors say. No smirking, no eye-rolling, no staring. Jurors notice, and what they notice they remember.

Two practical rules for the whole of the trial.

First, dress for the courtroom. Give the jury no reason to reach a conclusion about you that has nothing to do with the evidence. Business attire. No visible tattoos or piercings if they can reasonably be covered or removed.

Second, assume the jury is always watching. That means in the courtroom, in the hallway, in the lift, in the parking garage, and on the pavement outside. Be polite to everyone you encounter. Do not discuss the case where you can be overheard. Do not use coarse language, even in a private conversation. Do not laugh in a way that could read as taking the proceedings lightly. In a federal courthouse you have no way of knowing which of the people around you is on your panel.

Opening statements

An opening statement is the first opportunity for the lawyers to speak directly to the jury about the case. It is not evidence, and the court will tell the jury so. It is a preview of what the evidence will show, and it frames how the jury will interpret everything that follows.

The government goes first, because it carries the burden of proof.

The government’s opening

Listen carefully, and take notes, because two things in a prosecutor’s opening can matter later.

What is missing. If the prosecutor omits or minimizes a witness or a piece of evidence that appeared prominently in the discovery, that may signal a witness who has recanted or become unavailable, or evidence that has not held up. A trial lawyer notes those absences and looks for them.

What is promised. A prosecutor who tells the jury the evidence will show a specific thing has made a commitment. If the evidence does not show it, defense counsel is entitled to remind the jury in closing of exactly what they were promised and did not receive.

The defense opening

The defense may make an opening statement immediately after the government’s, or in many courts may reserve it until the start of the defense case. Reserving is sometimes tactically sensible and is usually a mistake, because it leaves the government’s version of events standing unanswered for days while the jury hears the case-in-chief.

An effective defense opening does more than summarize. Its goals:

Connect with the jury. Counsel speaks to jurors directly rather than reading from notes. The manner communicates confidence in the case.

Tell a story. Often the story is about the investigation and how it produced this prosecution — what the agents did, what they did not do, whom they relied on, and what they never checked.

Plant the themes. The opening introduces the phrases the defense wants the jury carrying into deliberations: that a cooperating witness is “buying his way out”; that the government “built the case backwards”; that “nobody looked for anyone else.”

Introduce you as a person. The prosecutor will call you “the defendant.” Your lawyer will call you by name. The opening will include facts about your life, your work, and your family that are proper to mention.

End on a clear statement. Not a promise about the verdict, but a clear statement of what the evidence will and will not establish, and of the standard by which the jury has agreed to measure it.

One discipline governs the entire opening: do not promise evidence you may not be able to deliver. If the opening tells the jury they will hear from a particular witness, and that witness does not testify, the government will say so in closing, and it will cost more than the promise was worth.

The government’s case-in-chief

The government presents its evidence first: witnesses on direct examination, documents, recordings, forensic results. Defense counsel has two jobs in this phase — objecting to what should not be admitted, and cross-examining the witnesses who are.

Objections that matter

Relevance and unfair prejudice. Relevant evidence is evidence that makes a fact of consequence more or less probable. But relevance is not the end of it. Under Fed. R. Evid. 403, “the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The advisory committee’s note supplies the working definition of the key term: “‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Two other points from that note are useful in argument: the court “should” consider “the probable effectiveness or lack of effectiveness of a limiting instruction,” and “the availability of other means of proof may also be an appropriate factor” — which is the basis of the familiar argument that a stipulation would prove the same point without the photographs.

Note the asymmetry built into the rule, because it is where 403 arguments are usually lost: the probative value must be substantially outweighed. Rule 403 favors admission.

Hearsay. Fed. R. Evid. 801(c) defines hearsay as a statement that “the declarant does not make while testifying at the current trial or hearing” and that “a party offers in evidence to prove the truth of the matter asserted in the statement.” The classic version in a criminal trial is an agent testifying to what a witness or an informant told him.

Two exclusions from the definition come up constantly in federal cases and are worth knowing by name.

An opposing party’s statement is not hearsay when offered against that party. Rule 801(d)(2) covers a statement that “was made by the party in an individual or representative capacity,” one “the party manifested that it adopted or believed to be true,” one made by an authorized speaker, one made by “the party’s agent or employee on a matter within the scope of that relationship and while it existed,” and — the one that structures most federal conspiracy trials — one that “was made by the party’s coconspirator during and in furtherance of the conspiracy.” That last provision is the reason a defendant in a conspiracy case will hear recordings of people he has never met.

A prior inconsistent statement is not hearsay under Rule 801(d)(1)(A) where the declarant testifies, is subject to cross-examination about the statement, and the statement “is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Note the condition: the prior statement had to be under oath in a proceeding. A prior inconsistent statement that was not given under oath is still powerful — but it comes in to impeach the witness’s credibility, not as substantive proof of what it asserts, and the jury will be instructed accordingly.

Laboratory reports and forensic analyses raise hearsay questions of their own, and they raise a distinct constitutional question under the Confrontation Clause about whether the analyst who performed the work must appear. That is its own body of law and it is one of the more active areas of federal criminal litigation.

Other crimes, wrongs, or acts. Fed. R. Evid. 404(b) provides that “evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But “this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

The rule was amended effective 1 December 2020, and the amendment tightened the government’s notice obligation in a way that matters. In a criminal case the prosecutor must: “(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.”

The emphasized requirement is newer than a great deal of the material written about Rule 404(b), and it is a real obligation. A notice that lists prior acts and recites the statutory purposes without explaining the reasoning does not comply with the current rule. That is a motion in limine worth making.

Prosecutorial misconduct. Where a prosecutor elicits testimony known to be false, or fails to correct testimony that becomes false, counsel objects and, depending on severity, moves for a mistrial. That conduct also raises disclosure obligations discussed below, and is a recurring ground in post-conviction litigation — see prosecutorial misconduct.

Cross-examination: usually the whole of the defense

The Sixth Amendment guarantees the accused the right “to be confronted with the witnesses against him,” and cross-examination is how that right is exercised. Its purposes: to expose gaps in a witness’s account, to test the accuracy of memory and perception, to undermine credibility, and to build reasonable doubt.

Cross-examination happens during the government’s case, but in most federal trials it is the defense case. You have the right to remain silent. The witnesses available to you may be few, and may carry problems of their own. The evidence you can put on affirmatively may be limited. So the defense is frequently built entirely out of the government’s own witnesses.

The scope is set by Fed. R. Evid. 611(b), and the precise wording matters: “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.” Credibility is always within scope. The court “may allow inquiry into additional matters as if on direct examination,” which is discretionary. And Rule 611(c) provides that “ordinarily, the court should allow leading questions … on cross-examination” — which is why cross-examination consists of short declarative statements ending in a question mark rather than open questions.

Controlling a difficult witness

Some witnesses — agents, cooperating witnesses, retained experts — will avoid answering the question asked and answer a different one. The rule that gives counsel leverage is simple: the witness must answer the question asked, not the question he wishes had been asked. The techniques below are how that leverage is applied.

Repeat the question, word for word. “My question was …” Some lawyers write the question on an easel.

Repeat the question framed as a negative.

Q: You stood in the doorway to prevent my client from leaving?

A: We just wanted to ask your client a few questions.

Q: Are you telling us that you did not stand in the doorway?

Ask the witness to admit the opposite. Where a witness refuses to concede something obvious after repeated questions (“The sky was cloudy?”), counsel reverses:

Q: The sky was clear?

Q: Not a cloud in the sky?

Q: You have never seen a sky so blue?

The witness, caught off guard, frequently reverses and volunteers the concession he had been resisting.

Repeat the question with the evasive answer embedded.

Q: So the answer to my question is, “No — nowhere in your report does it state that Mr. Jones said he threw the firearm under the car”?

Apologize for the “misunderstanding” and restate.

Q: I’m sorry — you seem to have misunderstood my question. My question was … Do you understand that question? And the answer is …?

Let the witness finish, then point out that he answered a question of his own creation.

Q: Sir, I did not ask you about the informant. My question was …

Or:

Q: Are you finished? Do you have anything else to add? Good. Now, can you answer my question?

None of this is theater. Each of these techniques produces a clean record — a question, an evasion, and then an answer — and the jury watches the witness decline to answer three times before answering.

Impeachment with a prior inconsistent statement

Showing that a witness told a different story before is the standard method of impeachment. It is a three-step sequence often taught by the acronym RAC: recommit, accredit, confront.

Suppose an agent testifies at trial that as he approached the driver’s side of a car, the defendant made a furtive movement toward the floor.

Recommit the witness to the testimony just given: “Today in court, you said you saw my client make a furtive movement when you approached his car?”

Accredit the prior statement — build up the circumstances in which the report was written so that the report becomes the more reliable account. Counsel asks a series of questions establishing that:

• the report was accurate when written;
• written reports are an important part of the work;
• other officers, agents, and prosecutors rely on them;
• the witness was trained in report writing;
• reports are written soon after the event; and
• this report was a good report, worthy of belief.

Confront the witness with the prior statement:

Q: I’m showing you what has been marked as Defense Exhibit 1. This is your report concerning this incident, correct?

A: Yes.

Q: Take a minute to review it. In your report you wrote: “As I approached the vehicle, the driver had his hands on the steering wheel”?

A: Yes.

The sequence works because the accreditation step forecloses the escape route. A witness who has just testified that his reports are careful, timely, and reliable cannot easily dismiss the one in counsel’s hand as a rough summary.

Cooperating witnesses and their deals

Where a witness faces charges of his own, he may have an agreement with the government — immunity, a plea to reduced charges, or a promise that his cooperation will be brought to the court’s attention at sentencing. That agreement is a legitimate and frequently decisive subject of cross-examination.

Counsel will develop, for the jury:

• the charges the witness faces and the penalties they carry;
• the witness’s expectations about his own sentence;
• that the agreement is with the same office prosecuting this case;
• that only the government can move for a reduced sentence based on his cooperation;
• that the government has sole discretion whether to make that motion;
• that the agreement requires “full and truthful” testimony, and that the government — and only the government — decides whether the witness has satisfied that requirement;
• that the witness understands the weight a prosecutor’s recommendation carries at sentencing; and
• that the witness expects favorable treatment if his testimony helps convict.

The government’s disclosure obligation here is constitutional, not merely a matter of fairness. Giglio v. United States, 405 U.S. 150 (1972), holds that “when the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule” — the rule of Brady v. Maryland, 373 U.S. 83 (1963), that “the 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.”

Giglio also decided the “nobody told me” defense, and decided it against the government twice over. “The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” And: “whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.”

The materiality standard Giglio applied is the one from Napue: a new trial is required if “the false testimony could … in any reasonable likelihood have affected the judgment of the jury.”

Undisclosed impeachment material is one of the more common grounds for post-conviction relief in federal cases; see Brady violations and exculpatory evidence.

The Jencks Act at trial

This is the moment the deadline table anticipated, and it is the single most disorienting feature of a federal criminal trial for anyone whose expectations were formed in state court or on television.

18 U.S.C. § 3500(b) provides: “After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.”

So: the witness finishes direct. Counsel moves. The material is produced. And only then does the defense read the reports, the interview memoranda, and the grand jury testimony of the witness who is about to be cross-examined. In practice, courts commonly recess to allow counsel to review what has been produced, and in many districts the government produces the material days or weeks in advance by standing order or as a matter of office practice. But nothing entitles a defendant to that, and the statute is explicit that “no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination.”

The remedy where the government does not comply is stated in the statute itself, and it is severe: the court “shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

Fed. R. Crim. P. 26.2 is the rule version, and it differs from the statute in two ways worth knowing. It is reciprocal — after any witness other than the defendant testifies on direct, the court, on motion of the party who did not call the witness, must order production. So the defense owes the government the prior statements of defense witnesses on the same terms. And the sanctions differ depending on who defaults: “If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.”

Our page on Jencks Act witness statements covers the mechanics in more detail.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The Jencks rule is the reason federal trial preparation looks different from what clients expect. You cannot build a cross-examination in advance out of statements you have not been given. What you can do is build the framework in advance — the areas, the sequence, the exhibits — so that when the material arrives you are reading it for inconsistencies against a plan rather than reading it cold. The lawyers who handle Jencks production well are the ones who did the work before it arrived.

Cross-examining the expert witness

Experts appear in nearly every federal criminal trial. They range from agents whose expertise comes from experience on the job — drug quantities and packaging, the meaning of coded language in intercepted calls, firearms interstate nexus — to scientists testifying about DNA, chemistry, digital forensics, or cause of death.

Before any of that testimony is heard, there is an admissibility question, and the rule that governs it changed recently in a way most published material has not caught up with. Fed. R. Evid. 702 was amended effective 1 December 2023. It now provides that an expert may testify “if the proponent demonstrates to the court that it is more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

The committee note explains what the amendment was for: Rule 702 was amended “to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule,” because many courts had “incorrectly determined” that the reliability requirements were “governed by the more permissive Rule 104(b) standard.” The note adds that Rule 702(d) was amended “to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

That is a gatekeeping standard with real content, and it belongs in a pretrial motion rather than in a cross-examination. The note is also careful about what the standard is not: proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.” And once the court makes that finding, “any attack by the opponent will go only to the weight of the evidence.” Where the expert relies on experience rather than a published methodology — which describes a great many law-enforcement experts — the note requires that “the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”

Recall also that the government’s expert disclosure obligation was rewritten effective 1 December 2022. Rule 16(a)(1)(G) now requires that the disclosure “contain: a complete statement of all opinions that the government will elicit from the witness in its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed …; the bases and reasons for them; the witness’s qualifications, including a list of all publications authored in the previous 10 years; and a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition.” Anyone describing federal expert discovery as a “written summary” is describing the pre-amendment rule. The current requirement is far more demanding, and an incomplete disclosure is a motion.

Once the expert is on the stand, cross-examination generally takes one or more of three approaches.

Challenge the factual basis for the opinion. An expert’s conclusion is only as good as the material it rests on. Most experts have no personal knowledge of the facts and work from summaries supplied by the government or from an assumption that the government’s evidence is accurate. On cross, counsel asks the expert to accept a contrary fact developed in the case, or to assume that a premise is wrong. If a particular fact matters to the analysis, the expert should concede that the conclusion may change without it.

Challenge the conclusion. Two broad theories: the science is sound but the analyst did not follow proper procedures in this case; or the discipline itself lacks a foundation in empirical testing and known error rates. Several forensic disciplines long treated as settled have been the subject of substantial scientific criticism, and Rule 702(d) as amended is now written in terms that invite the second argument.

Challenge credibility. Prior inconsistent statements — testimony in other cases, earlier drafts of the report. Prior convictions or acts bearing on truthfulness. Overstated credentials, which are more common than most jurors would assume.

And bias, which for a retained expert means the fee. Counsel develops it step by step, because the very facts the expert offers to justify the fee tend to suggest to the jury that the case has been a profitable one:

Q: Are you being paid by the time you spent on this case, or a flat fee?

Q: What is your hourly rate?

Q: You use your office at the university to do your work on this case?

Q: You don’t pay rent for that office, do you?

Q: The assistant who typed your report is the one the university provides?

Q: The university pays her, not you?

Q: Did you have the assistance of any students on this case?

Q: Are you billing for their time?

Q: Do you pay them, or does the university?

Q: So the $300 per hour you are charging on this case is essentially all profit — you have no overhead expenses, no staff, no rent, no supplies?

Q: As of today, how many hours have you billed on this case?

Q: How many hours do you anticipate billing in total?

Q: So the government owes you $15,000 for your work on this case?

Q: Do you have any concern that you may not be paid that $15,000 if your testimony does not help the case?

The last two questions are the point of the sequence. The witness has spent the preceding minutes explaining why the fee is justified, and every justification adds to the total the jury has just heard.

Cross-examining the case agent

A report is not a neutral record written by a disinterested observer. It is a summary written after the fact by the person who made the arrest or ran the investigation, and it is written with an audience and a purpose: to make the arrest stick, to justify the search, to satisfy a supervisor, and to give the prosecutor a usable account of the facts. Words are chosen. Witness statements are compressed. Things that do not help are sometimes not included at all. Few jurors have ever considered what pressures shape a report, and cross-examination is where they learn.

The recurring problem is the agent who testifies at trial to a significant fact that appears nowhere in his report. Asked about the omission, an experienced witness will shrug: “It’s only a summary, counsel. It doesn’t include every detail.”

The cross that answers that runs like this. It is long by design, because each answer closes an exit.

The agent was trained to write comprehensive reports

Q: You attended a training academy?

A: That’s correct.

Q: At the academy you were taught the importance of writing reports?

A: Yes.

Q: You were taught that a report should include all important facts?

A: It’s only a summary, as I’ve said.

Q: Does the academy provide a course in report writing?

A: Yes.

Q: You were taught that other agents and officers might rely on your report in conducting their investigations?

A: That’s correct.

Q: And that they need all the important information to do a proper investigation?

A: Yes.

Q: And for that reason your report should be comprehensive?

A: Well, my report includes the necessary information.

Q: For that reason, your report should be comprehensive?

A: … Yes.

The report is written for the prosecutor

Q: You were taught that the prosecutor would be given your report?

A: Yes.

Q: To familiarize herself with the case?

A: Yes.

Q: To rely on it in litigating release conditions?

A: Right.

Q: To assess the strength of the case?

A: Yes.

Q: Perhaps to negotiate a resolution with defense counsel?

A: Yes.

Q: To prepare for trial?

A: Yes.

Q: Which includes preparing a direct examination?

A: That’s right.

Q: Of you?

A: Yes.

Q: And you know that before trial you may have little contact with the prosecutor?

A: Unfortunately, that’s true.

Q: You might meet the trial prosecutor for the first time the morning of trial?

A: Yes.

Q: So much of what the prosecutor knows about this case, she learned from your report?

A: Yes.

Q: To be sure the prosecutor is properly prepared, your report should be comprehensive?

A: Yes.

Q: When you write a report, you include everything you want the prosecutor to know?

A: Well, I try.

Q: And you know that six months, a year, or more can pass between arrest and trial?

A: Correct.

Q: And during those six months or more, you would expect to make other arrests?

A: Yes.

Q: And to testify in other cases?

A: Yes.

The report was written when memory was fresh

Q: And like all of us, your memory immediately after an event is better than it is six months or more later?

A: That’s true.

Q: You were outside the courtroom this morning?

A: Yes.

Q: Seated on the bench just outside?

A: Yes.

Q: Reading your report?

A: … Yes.

Q: Reading your report to refresh your memory?

A: Yes.

The report is a complete summary of the important facts

Q: You wrote the report yourself?

A: Yes, of course.

Q: You had the time you needed to write it?

A: Yes.

Q: You’re not given a time limit?

A: No.

Q: You take the time you need?

A: Within reason.

Q: When you finished, you read it over?

A: Yes.

Q: You were satisfied it included every important fact?

A: As I said, it’s a summary.

Q: You were satisfied that your report included every important fact?

A: It was a summary.

Q: A summary that did not include every important fact?

A: Yes.

Q: So you gave the prosecutor an incomplete summary?

A: No.

Q: In preparing to testify here today, you re-read an incomplete summary to refresh your memory?

A: … No.

The agent made the report as accurate as possible

Q: You tried to make the report as accurate as possible?

A: I write a lot of reports.

Q: You made this report as accurate as possible?

A: I don’t know which section you’re referring to.

Q: I’m referring to the entire report. Did you make it as accurate as possible?

A: Without knowing which section, I can’t answer that.

Q: Did you write this report?

A: Yes.

Q: In this report, you record your observations?

A: Yes.

Q: When you record your observations, sometimes you try to be accurate?

A: Well, yes.

Q: And sometimes you are less interested in recording your observations accurately?

A: I’m not following you.

Q: Sometimes, when writing your report, you are less interested in recording your observations accurately?

A: No, that’s not true.

Q: So you made this report as accurate as possible?

A: Yes.

The witness is now committed. He has told the jury that he wrote the report carefully, under no time pressure, that he reviewed it, and that it accurately depicts the events. Every subsequent attempt to retreat from the report’s language costs him.

The pay-off comes when counsel takes the witness through the precise words he chose:

Q: In your report, you describe Mr. Jones as “intoxicated”?

A: What I meant was that he had been drinking. He was mildly intoxicated.

Q: You did not write “mildly” intoxicated. You wrote “intoxicated”?

A: I could have been more specific.

Q: After you finished the report, you reviewed it?

A: Yes.

Q: To make sure it was accurate?

A: … Yes.

Q: As you read it, you were free to edit it?

A: As I read it, yes.

Q: And when you edited it, you did not see any need to insert the word “mildly” before “intoxicated”?

A: “Intoxicated” is a broad term.

Q: You did not see any need to insert “mildly” before “intoxicated”?

A: No.

Q: On page three you wrote: “His speech was not clear”?

A: I’d have to check my report.

Q: Here it is. Take all the time you need. You wrote, “His speech was not clear”?

A: I did not mean he was slurring. I meant he was being evasive.

Q: You never used the word “evasive” in this report?

A: I don’t know.

Q: You did not write, “He answered evasively”?

A: I’ll take your word for it.

Q: Here’s your report. Take all the time you need. Done? You did not use the word “evasive,” or describe him as answering evasively?

A: Not in those words.

Q: Let’s look at what you actually wrote. On page three: “English being a second language for him along with his intoxication made it somewhat difficult to communicate with him”?

A: Yes, that’s what I wrote. But you have to understand how I meant it.

Q: You noted that it was “difficult” to communicate with him?

A: In that part of the report.

Q: You noted that it was “difficult” to communicate with him because English was his second language?

A: Well, that and he was nonchalant.

Q: You wrote that one reason it was difficult to communicate with him was that English was his second language?

A: I wrote that.

Q: And you also wrote that it was difficult because of his “intoxication”?

A: You are misrepresenting what I wrote. I did not say he slurred.

Q: Your Honor, may the reporter read back my last question?

THE COURT: Yes.

REPORTER: “And you also wrote that it was difficult to communicate with him because of his ‘intoxication’?”

Q: Did you understand my question, as read back?

A: I did. That’s what I wrote.

That last exchange is worth studying, because it is the mechanism by which cross-examination is protected. When a witness recharacterises the question rather than answering it, the record is the remedy, and the reporter is the referee.

Cross-examining an eyewitness

Jurors give eyewitness testimony great weight, particularly where the witness has no evident stake in the outcome. To a jury it is the simplest evidence in the case: if the witness correctly identified the person, the verdict follows without any need to assemble a circumstantial puzzle. In reality, an identification is the product of the conditions under which the observation was made and of the witness’s ability to recall it, and both are far less reliable than juries assume.

External conditions — lighting, weather, distance, obstructions, duration — limit what could have been seen. Internal conditions limit what was seen. A person watching a violent event is not a camera. Fear, competing thoughts, and the sheer speed of the event interfere with encoding. In the moments afterward, the scene fills with sirens, blood, distressed people, and questions, all of which interfere further.

Memory does not preserve what was encoded; it degrades and it changes. And memory frequently changes in one direction: witnesses become more confident over time, not less. The uncertainty a witness felt at the scene is often replaced, months later, by a firm conviction. On cross-examination, the witness is unlikely to concede he might be wrong — which is exactly why the cross is directed at the conditions of the observation rather than at the conclusion.

An illustrative cross-examination of a witness to a robbery. Note that no question asks the witness to admit he is mistaken. Every question is about circumstances, and the circumstances do the work.

The event was a terrible ordeal for the witness

Q: In broad daylight, a person pulled out a sawed-off shotgun?

A: Yes.

Q: And pointed it at Mrs. Webster?

A: Yes.

Q: You saw the gun?

A: Yes.

Q: You stared at the gun?

A: Yes.

Q: Mrs. Webster was a frail, elderly woman?

A: Yes.

Q: She cried out?

A: That’s right.

Q: The robber reached out and grabbed her bag?

A: Yes.

Q: But she would not let go?

A: No.

Q: The robber screamed at her to let go?

A: Yes.

Q: He threatened to shoot her?

A: Yes.

Q: You believed he might do it?

A: That’s right.

Q: You wanted her to let go of the bag?

A: Right. I didn’t want to see her shot.

Q: The robber knocked her to the pavement?

A: Yes.

Q: She fell hard?

A: Yes.

The witness was immobilized

Q: You wondered whether you should go to her aid?

A: I … didn’t know what to do.

Q: You didn’t want to be shot?

A: No.

Q: You didn’t want to do anything to upset the robber?

A: No.

Q: He might have shot you?

A: Right.

Q: You did not go to her aid?

A: No.

Q: You made no move?

A: No.

Q: You did not tell the robber to leave her alone?

A: No.

Q: You did not shout for help?

A: No.

Q: At that moment, you did not call for emergency services?

A: No.

Q: You did not run?

A: No.

Q: Your mind was racing?

A: Yes, it was.

Q: You were frightened?

A: I was scared, yes.

Q: You neither intervened nor fled?

A: No.

Q: You were too frightened to do either?

A: Yes.

The witness did not look the robber in the eye

Q: You did not look the robber in the eyes?

A: No, but I saw his face.

Q: You did not look him in the eyes?

A: No.

Q: You were unable to tell responding officers his eye color?

A: No, I wasn’t. It happened so fast.

Q: You were too frightened to look him in the eyes?

A: I was scared, yes.

Q: Too frightened to look at his face for long?

A: Well … yes, I suppose.

Q: You did no more than glance at his face?

A: I saw him. It’s your client.

Q: You did no more than glance at his face?

A: I looked long enough.

The witness had very little time to observe

Q: The robber grabbed the bag?

A: Yes.

Q: And ran down the street?

A: Yes.

Q: And got into a car?

A: Yes.

Q: And drove away?

A: Yes.

Q: The entire incident lasted only seconds?

A: About ten seconds.

Q: During those ten seconds, you looked at the shotgun?

A: Yes.

Q: You watched the robber and Mrs. Webster struggle over the bag?

A: Yes.

Q: That lasted a few seconds?

A: About that.

Q: You watched her fall?

A: Yes.

Q: And you watched the robber run away?

A: Yes.

Q: All in ten seconds?

A: Yes.

Q: Of those ten seconds, you spent less than two seconds looking at his face?

A: I saw his face.

Q: Of those ten seconds, you spent less than two seconds looking at his face?

A: Two or three seconds. Maybe more.

Q: And during those two to three seconds, your mind was racing?

A: Well, kind of.

Q: Your eyes moved between the robber, the shotgun, and Mrs. Webster?

A: Yes.

Q: You didn’t focus on his face?

A: No.

Q: You looked at his face more than once?

A: I believe I did.

Q: So you’re adding together the time on those two or three occasions?

A: Yes.

Q: So if you looked at his face two or three times, for a total of two or three seconds, each look lasted no more than about a second?

A: I guess. It’s difficult to say.

Q: In two to three seconds, you could do no more than glance?

A: I … did more than glance.

Q: And during those seconds, Mrs. Webster was trying to wrestle the shotgun away from him?

A: Yes.

Q: Pulling the gun back and forth?

A: Yes.

Q: And pulling him with her?

A: Somewhat.

Q: And he was trying to pull it away from her?

A: Yes.

Q: They were twisting and turning?

A: Yes.

Q: Violently?

A: Yes.

Q: So for the entire time you observed him, his face was moving back and forth?

A: I guess.

Q: And all that time, you were trying to decide what to do?

A: Well … yes.

Chaos followed

Q: As soon as he was gone, you ran to Mrs. Webster?

A: Yes.

Q: She was bleeding?

A: Yes.

Q: Breathing rapidly?

A: Yes.

Q: Distraught?

A: She seemed to be, yes.

Q: Then you called for help?

A: Yes.

Q: You were speaking rapidly?

A: Yes.

Q: Trying to hold it together?

A: Yes.

Q: You called out for a doctor?

A: Yes.

Q: People began to gather?

A: Yes.

Q: Crowding around you?

A: Yes.

Q: You said, “Give us some room”?

A: Yes.

Q: She was nearly hysterical?

A: Yes.

Q: You were afraid for her?

A: Yes.

Q: You stayed with her until the ambulance arrived?

A: Yes.

Q: You were under stress?

A: Yes, I was.

Q: Your heart was pounding?

A: Yes.

Q: The paramedics examined you as well?

A: Yes.

Q: In the minutes after the robbery, you had no opportunity to reflect on what the robber looked like?

A: Not immediately, no. But I did afterwards.

That final answer is the one counsel wants, and it is the bridge to the rest of the identification challenge: what happened “afterwards,” who showed the witness what, and in what order.

Rule 29: the motion for judgment of acquittal

When the government rests, the defense makes a motion that has no counterpart in the popular picture of a trial and that people sometimes call, using state or civil vocabulary, a “directed verdict.” In a federal criminal case it is a motion for judgment of acquittal under Fed. R. Crim. P. 29, and it asks the judge to end the case, or part of it, without sending it to the jury.

The standard is stated in the rule: “After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Note the word “must” — where the standard is met the court has no discretion. Note also that the rule does not define “insufficient”; the formulation courts apply comes from case law, and a page that supplies a formulation from memory is inventing one.

The court “may on its own consider whether the evidence is insufficient to sustain a conviction,” so the motion is not the only route, but nobody should rely on that.

The motion is typically made at the close of the government’s case and renewed at the close of all the evidence. It is frequently made count by count, because a case can be sufficient on some counts and not on others, and a Rule 29 that narrows the indictment before deliberations has real value even where it does not end the case. Courts often reserve decision rather than ruling immediately, which is expressly permitted.

After a guilty verdict, the motion can be made again. Rule 29(c)(1): “A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.”

And a point that is easy to miss and occasionally decisive: “A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.” The post-verdict motion does not depend on having made the earlier one — though as a matter of trial practice it is made at every available opportunity, and the earlier motions serve preservation purposes of their own.

The defense case

When the government rests, the defense may present evidence. It is not required to, and in a significant share of federal trials it does not — because the defense has been made through cross-examination, and because putting on a case creates exposures of its own.

The bottom line, and it is worth stating without qualification: you do not have to prove your innocence. The government must prove guilt beyond a reasonable doubt.

Potential defenses

Depending on the facts, counsel may call witnesses and present evidence supporting one or more of the following.

Misidentification — “some other person did it.” This defense moves the jury’s attention from the defendant to the actual perpetrator, who is not present to be examined. It also permits the defense to put the investigation on trial: once the agents settled on this defendant, what leads did they stop following? It is most effective where the investigative file itself shows abandoned avenues.

Consciousness of innocence. Where the defense is lack of intent or lack of knowledge, evidence of what you did — or did not do — can be recast as evidence of what you believed. You consented to a search of your bag and talked freely about who gave you the package inside because you had no idea what it contained. You did not flee. You made no effort to conceal or destroy anything.

Good faith. Where the charge requires proof of an intent to defraud, evidence that you acted in good faith and with a sincere belief in the truth of your representations goes directly to the element the government must prove. This is a mainstay of federal white-collar defense and it is a genuine defense, not a plea for sympathy.

Advice of counsel. In a business prosecution, where you consulted a lawyer about the legality of a proposed course of action before undertaking it, and followed the advice given. The limits are strict and they are where this defense usually fails: it requires full disclosure of all relevant facts to the lawyer, and faithful adherence to the advice. A partial disclosure or a selective compliance will not support it, and asserting the defense has consequences for privilege that have to be worked through before it is raised.

Alibi — and the federal notice rule. Evidence that you were somewhere else can be a strong defense where it is corroborated. Where it rests on friends, partners, or family, juries tend to discount it as biased, particularly where the witnesses offer no corroborating detail. The realistic assessment is uncomfortable but true: although the government retains the burden throughout, juries in practice tend to treat an alibi as something the defense has offered to prove, and to convict if they do not believe it. An alibi is therefore worth presenting where it can be corroborated from a disinterested source — a time-clock record, an electronic toll record, a bank transaction with time-stamped video, cell-site data, a card transaction.

And in federal court an alibi defense carries a notice obligation. Fed. R. Crim. P. 12.1 provides that the government “may request in writing that the defendant notify an attorney for the government of any intended alibi defense,” and the request “must state the time, date, and place of the alleged offense.” If that request is made, then “within 14 days after the request, or at some other time the court sets, the defendant must serve written notice … of any intended alibi defense,” stating “each specific place where the defendant claims to have been at the time of the alleged offense” and “the name, address, and telephone number of each alibi witness on whom the defendant intends to rely.”

The obligation is reciprocal. Once notice is served, the government must disclose the witnesses it will rely on to place you at the scene and its rebuttal witnesses, “within 14 days after the defendant serves notice … but no later than 14 days before trial.” Both sides then have a continuing duty to disclose additional witnesses learned of before or during trial.

The sanction is real: “If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi.” One protection is preserved expressly — “This rule does not limit the defendant’s right to testify.” And “for good cause, the court may grant an exception to any requirement of Rule 12.1(a)–(c).”

A defendant who tells his lawyer about an alibi the week before trial, after a government request has gone unanswered, has created a problem that may not be fixable.

Should you testify?

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” You cannot be forced to testify at your own trial. You may remain silent.

The decision is yours. Not your lawyer’s. You should discuss it exhaustively with counsel, who knows the record and has watched the jury. But the final decision belongs to you alone, and the court will ordinarily confirm on the record — outside the jury’s presence — that you understand that.

There is no formula. The factors below are what the conversation is actually about.

Your silence cannot be used against you. Griffin v. California, 380 U.S. 609 (1965), holds that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin explained the reasoning in a line worth remembering: a comment on silence “is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.”

Griffin also drew a distinction that explains why the defense requests a no-adverse-inference instruction: “What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” The Court did not decide, in Griffin, whether a defendant is entitled to demand such an instruction; in modern federal practice the instruction is standard and is given on request.

The presumption of innocence and the burden of proof. You are presumed innocent unless and until the government proves guilt beyond a reasonable doubt. That standard is difficult to define in the abstract, and it is easier to say what it is not. It does not mean beyond all doubt — no standard could require that. It does not mean “more likely than not,” which is the civil standard and far too low for a criminal case. The jury will be instructed in the language its circuit uses. What it comes to in practice is that after hearing all the evidence, jurors must be firmly convinced of guilt.

If the government has not met that burden, or if cross-examination has already produced substantial doubt, the case for testifying is correspondingly weaker.

Cross-examination. If you testify, you submit to cross-examination by an Assistant United States Attorney who has been preparing for it. Every inconsistency, every prior statement, every gap will be explored.

Opening the door. Testifying can make admissible things that would otherwise have stayed out. Under Fed. R. Evid. 611(b), cross-examination “should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility” — but credibility is always in scope, and the court “may allow inquiry into additional matters as if on direct examination.”

The largest specific exposure is prior convictions. Fed. R. Evid. 609 governs, and it treats a testifying defendant differently from any other witness. For a conviction “punishable by death or by imprisonment for more than one year,” the evidence “must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant” — but “must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.” That is a more protective standard than Rule 403’s, and it is one of the few places in the rules where the balance is deliberately tilted toward the accused.

A separate provision applies to any crime, regardless of punishment, where “the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.” Convictions in that category come in without the balancing.

And Rule 609(b) sets a time limit that is frequently misunderstood: where “more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later,” the conviction is admissible “only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it.” The clock runs from release, not from conviction — which for anyone who served a substantial sentence can be many years later than expected.

Rule 609(c) excludes convictions that have been pardoned, annulled, or made the subject of a certificate of rehabilitation “based on a finding that the person has been rehabilitated,” where there has been no later felony conviction, and those pardoned or annulled “based on a finding of innocence.”

Where a defendant intends to testify, counsel will ordinarily litigate Rule 609 in advance by motion in limine, so that the decision whether to testify is made knowing what the jury will hear.

Your theory of the case. Some defenses are difficult to establish without the defendant’s own testimony — self-defense, entrapment, good faith, advice of counsel, lack of knowledge. If yours is one of those, that weighs in favor, particularly where you have no prior convictions and can give a clear account of your conduct.

What jurors expect. Jurors generally want to hear from the accused, notwithstanding the instruction that they must not hold silence against him. Jurors also know how much a defendant has at stake and tend to discount his testimony accordingly. Both things are true at once.

Credibility becomes the case. This is the risk that dominates all the others. When a defendant testifies, his testimony becomes the main event. Juries frequently decide the case on whether they believed him — regardless of weaknesses in the government’s proof, regardless of the other evidence, and regardless of the instructions on reasonable doubt. A defendant who testifies and is disbelieved has, in practical terms, converted a case about the government’s burden into a case about his own credibility.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: This decision is made at the end of the government’s case, not at the beginning, and it is made on what the record actually looks like rather than on what anyone hoped it would look like. The conversation I have with a client is not “do you want to tell your story” — everyone wants to tell their story. It is: here is what the jury has now heard; here is what the Assistant United States Attorney will ask you; here is what comes in under Rule 609 if you take the stand; here is what the government cannot say if you do not. The decision is the client’s, and it should be made with all of that on the table.

Closing arguments

The order, which is set by rule

In many state courts the order of closing arguments varies. In federal court it does not. Fed. R. Crim. P. 29.1 provides that “closing arguments proceed in the following order: (a) the government argues; (b) the defense argues; and (c) the government rebuts.”

The government speaks first and last. The advisory note explains the second half: “After the defendant has argued, the government is entitled to reply in rebuttal.” The Committee also expressed the view “that the prosecutor, when he waives his initial closing argument, also waives his rebuttal” — a point that occasionally matters where a prosecutor tries to hold everything for rebuttal.

The structural consequence for the defense is that the last word belongs to the other side. Defense closings are built with that in mind: anticipate the rebuttal, name it, and answer it in advance, because there will be no opportunity afterwards.

Improper argument, and why counsel must object

Improper argument in a summation is usually left uncorrected on appeal unless it was egregious enough to render the trial fundamentally unfair. And counsel must object at the time to preserve the issue: an unpreserved claim is reviewed, if at all, under a far more demanding standard. See preserving error for appeal.

The categories of argument most likely to draw an objection, and to attract an appellate court’s attention:

Appeals to passion or prejudice. Undue emphasis on sympathy for a victim; name-calling; framing the case as part of a war on some category of crime; urging jurors to “send a message”; predicting dire consequences from an acquittal; or graphic visual displays whose only function is emotional.

Comment on the defendant’s silence. Under Griffin, the prosecutor may not ask the jury to draw a negative inference from a defendant’s failure to testify. Counsel listens for indirect versions as well — remarks about a failure to show remorse, or about testimony being “uncontradicted” in a way that points at the defendant’s silence.

Racial, ethnic, or other stereotypes. Beyond overt slurs: comparisons drawn along racial lines between a victim and a defendant; references to immigration status where it is not an element; and arguments based on sexual orientation.

Misuse of evidence admitted for a limited purpose. Where a prior conviction was admitted because it is an element of the offense — as in an unlawful-possession-of-a-firearm case — it is improper for the prosecutor to argue in closing that the jury should protect the community from people with prior convictions who have firearms. That is the propensity use that Rule 404(b) forbids, made in argument rather than through evidence.

Misstating the evidence. A prosecutor may ask the jury to draw reasonable inferences. She may not tell the jury that a witness said something the witness did not say. Take a case in which the defendant’s role was to interpret for a relative during a transaction. The relative admits on cross that he had been removed from the country years earlier for a drug offense, but is never asked whether the defendant knew that. It is improper for the prosecutor to argue in closing that the defendant knew, or that the relative testified she knew.

What a defense closing does

The closing is the opportunity to draw conclusions from the evidence, apply the law the court is about to give, and equip jurors with the arguments to make on your behalf in the jury room.

Tell the story. Every defendant has a story to tell in closing. Even where the defense rests entirely on the government’s failure to carry its burden, that is a story: the investigation was hurried, the witnesses are unreliable, and the government asked you to convict on that.

Show the jury how to apply “beyond a reasonable doubt.” Left to themselves, jurors tend to pile up the evidence and estimate the height of the stack. That is not the standard. Counsel walks the jury through applying the standard to each element the government must prove, and to the testimony of each witness it depends on. A witness may be truthful about most things and wrong — or untruthful — about the one thing that matters, and that is the piece counsel isolates.

Explain the jury’s role. Jurors frequently believe their job is to piece the evidence together until they arrive at the truth. It is not. They are not required to solve the case. Their function is to decide whether the government has proved guilt beyond a reasonable doubt on each element of each count.

Use exhibits and demonstratives. Enlargements, timelines, and displays of testimony make an argument more persuasive, break up the monotony of speech, and convey that counsel has something concrete to show rather than merely something to say.

Jury instructions

After the evidence closes, the court instructs the jury on the law. This is not a formality: the instructions define the elements the government must prove, and the difference between two formulations of an element can be the difference between a conviction and an acquittal.

Fed. R. Crim. P. 30 governs the process.

Requesting instructions. “Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.” In practice most judges set a date well before trial for proposed instructions, and most circuits publish pattern instructions that supply the starting point.

The charge conference. The court “must inform the parties before closing arguments how it intends to rule on the requested instructions.” That timing exists so that counsel can argue the case consistently with the law the jury will be given.

The duty to object — and the cost of not objecting. Rule 30(d) is short and it decides a great deal of appellate litigation: “A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).”

Rule 52(b) is plain-error review, and it is a substantially harder standard than the review available for a preserved objection. So the sequence that protects the record is: object, specifically, stating grounds, on the record, before the jury retires. A general objection preserves little. See standards of review for what turns on the difference.

Deliberations, the verdict, and unanimity

The jury retires to a private room. It selects a foreperson to communicate with the court. It reviews the evidence and the instructions and votes.

The verdict must be unanimous. Fed. R. Crim. P. 31(a) states it in four words: “The verdict must be unanimous.”

The jury is twelve. That comes from a different rule and the two are routinely conflated. Fed. R. Crim. P. 23(b) provides that “a jury consists of 12 persons unless this rule provides otherwise.” The parties may, with the court’s approval, “stipulate in writing that: (A) the jury may consist of fewer than 12 persons; or (B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.” And after deliberations have begun, “the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.”

Six-person criminal juries are a state-court phenomenon. They do not exist in federal criminal trials.

A bench trial requires the government’s consent. This surprises defendants regularly. Rule 23(a) provides that where the defendant is entitled to a jury trial, “the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” All three. A defendant cannot elect a bench trial on his own.

Partial verdicts. Rule 31(b) permits a jury that cannot agree on everything to return a verdict on what it has agreed. “If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.” And: “If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.”

Hung counts. “If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.” That last sentence needs saying plainly, because it is where hope is most often misplaced. A hung jury is not an acquittal, and it does not bar a retrial. The government’s decision whether to retry is its own. Where there is a retrial, 18 U.S.C. § 3161(e) sets a 70-day clock running from the date the action occasioning the retrial becomes final.

Polling. Rule 31(d): “After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually.” Each juror is asked whether the verdict announced is his or her verdict. “If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.” Requesting a poll is routine after a guilty verdict and takes a few minutes.

And you must be present. Rule 43(a)(2) requires the defendant’s presence at “every trial stage, including jury impanelment and the return of the verdict.”

After the verdict

If the verdict is not guilty, the case is over as to those counts. Double jeopardy bars a retrial on a count on which the jury acquitted.

If the verdict is guilty, the trial is over but the case is not. Two motions come immediately, and both run on 14-day clocks from the same general moment but with different triggers:

• Rule 29(c) — renewed motion for judgment of acquittal, “within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.”
• Rule 33 — motion for a new trial. The court “may vacate any judgment and grant a new trial if the interest of justice so requires.” A motion “grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.”

Rule 33 also carries a much longer clock for one category, and it is the one that matters most in post-conviction work: “Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Both Rule 33 clocks run from the verdict, not from sentencing and not from entry of judgment. And where an appeal is already pending, “the court may not grant a motion for a new trial until the appellate court remands the case.”

See newly discovered evidence in federal court for how that three-year window is used in practice.

Then the case moves to the presentence report and to sentencing, and after that to the deadlines described on the after sentencing page — where a different set of 14-day clocks, with a different trigger, governs the notice of appeal.

Motions in limine and evidentiary practice

Not every evidentiary fight waits for trial. A motion in limine asks the court to rule in advance that particular evidence will or will not be admitted, and in a federal criminal case the recurring subjects are predictable:

• Rule 404(b) evidence — where the government has given notice of other acts, the defense responds by motion, and the current rule’s requirement that the notice “articulate … the permitted purpose … and the reasoning that supports the purpose” gives that response something concrete to work with.
• Rule 609 impeachment — a defendant deciding whether to testify is entitled to know what the government would be permitted to use, and the question is litigated in advance for that reason.
• Expert testimony under Rule 702 — the 2023 amendment made the gatekeeping standard explicit, and a challenge to the reliability of a forensic discipline or to an experience-based opinion belongs in a written motion with the reliability framework laid out, not in a mid-trial objection.
• Rule 403 exclusions — photographs, recordings, and demonstratives whose prejudicial effect substantially outweighs their probative value, and offers to stipulate that would remove the need for them.
• Government summary charts and demonstrative exhibits, which in a document-heavy case can do more work with the jury than the underlying evidence.
• Limiting instructions — where evidence is admitted for a narrow purpose, the instruction that confines it is requested at the time and again in the charge.

The advantage of litigating in advance is not only that the ruling may be favorable. It is that a defendant deciding how to try the case — and whether to try it at all — is entitled to know what the jury will hear.

How often does a federal case actually go to trial?

Rarely, and any honest account of this stage has to say so.

The United States Sentencing Commission reports, for fiscal year 2025, that of 66,662 individuals sentenced in the federal courts, 65,099 — 97.7 percent — were convicted following a guilty plea, and 1,563 — 2.3 percent — were convicted after trial. U.S. Sent’g Comm’n, 2025 Sourcebook of Federal Sentencing Statistics, tbls. 11–12.

The same data show the rate is not uniform. Trial rates by offense type in FY2025 ranged from 0.3 percent in immigration cases and 2.1 percent in drug-trafficking cases to 10.0 percent in bribery and corruption cases, 10.2 percent in assault cases, and 23.0 percent in individual-rights cases. The District of Columbia recorded a 17.7 percent trial rate; several districts recorded rates below 1 percent.

Three things about those numbers.

They are data, not law. They describe what happened in one fiscal year across the federal system. They say nothing about any individual case, they do not establish what any particular defendant should do, and they cannot be used to predict an outcome.

They are a floor on the count, not a measure of contested litigation. The Sourcebook counts individuals sentenced. It does not count cases dismissed, cases resolved by pretrial diversion, or the substantial number of cases in which a suppression motion changed the shape of the resolution without a trial ever being held. A great deal of contested federal criminal litigation is invisible in a plea-versus-trial statistic.

They should not be read as advice in either direction. A low trial rate is not a reason to plead and it is not a reason to go to trial. The decision belongs to the defendant, on the facts of the case, after a candid assessment by counsel of the evidence, the exposure, and what the record will look like at sentencing. That decision is discussed in more depth on the plea agreements page.

What the numbers do usefully establish is that the pretrial phase — discovery, motions, and above all suppression — is where most federal cases are actually decided. That is the reason Part One of this page is longer than Part Two.

What to ask your lawyer at this stage

If your case is at the motions stage or heading toward trial, these are questions worth asking, and a lawyer should be able to answer each of them from your file rather than in the abstract.

1. What is my motions deadline, and has the court set one? If not, the fallback deadline is the start of trial, and that is not a comfortable place to be.
2. What suppression issues do you see in this record, and what facts do you still need from me? If the answer is “none,” ask what the government’s evidence is and how it was obtained.
3. Do I have standing to challenge this search? In a case involving a vehicle, a residence you do not own, or a co-defendant’s property, this is the first question and it is often the hardest.
4. Will there be an evidentiary hearing, and will I need to testify at it? And if so, what does Rule 104(d) protect and what does it not?
5. What has the government produced, and what is it holding until trial? Specifically: what Rule 16 material do we have, has anything been designated as Brady or Giglio, and what is the practice in this district and before this judge on early Jencks production?
6. Has the government given Rule 404(b) notice, and does the notice comply with the current rule?
7. What are the elements the government must prove on each count, and which of them is weakest?
8. Who conducts voir dire in front of this judge, and when are proposed voir dire questions due?
9. If I testify, what comes in under Rule 609, and can we get that ruled on before I decide?
10. What are the deadlines after a verdict, and who calendars them?

None of those questions is adversarial. They are the questions a lawyer preparing this case is already asking, and asking them yourself is a reasonable way to find out whether the work is being done.

Where this sits in the federal case sequence

The trial stage is step 4 of seven in the federal court process.

• The step before: plea agreements — the Rule 11 framework, the three agreement types, and what does and does not bind the court.
• The step after: the presentence report — how it is prepared, the 35-day and 14-day clocks, and how objections are made.
• The whole sequence: the federal court process hub, which runs from investigation through pretrial, plea agreements, trial, presentence report, sentencing basics, and after sentencing.

A note on how to use the sequence. Each of the seven pages covers one stage and links the stage before and the stage after, so a reader can walk the process end to end without guessing what comes next. The boundaries between them are deliberate rather than arbitrary: detention and conditions of release are on the pretrial page, the Rule 11 colloquy and the three agreement types are on the plea agreements page, the Guidelines calculation is on sentencing basics, and the notice-of-appeal and § 2255 clocks are on after sentencing. This page holds suppression and trial. Where a topic sits on a neighboring page, it is covered here only to the depth needed to understand this stage, and then linked.

Terms used on this page that may be unfamiliar are defined in the glossary of federal criminal terms, and the offenses most commonly charged in federal court are described on the federal offenses and charges page. If the distinction between a federal and a state prosecution is part of what you are trying to understand, see federal versus state.

Talking to a federal criminal defense lawyer

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm with a national practice, founded in 2019, with offices in Columbia and Mount Pleasant, South Carolina and clients across the federal system. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience, has handled more than 330 federal proceedings, over 100 of them appeals, and has been admitted pro hac vice in federal courts from Montana to Florida.

If you are facing a federal charge and a motions deadline is approaching, the useful thing to do is talk to a lawyer about the specific record in your case. Nothing on this page is legal advice, reading it does not create an attorney-client relationship, and no lawyer can tell you what will happen in your case without seeing the file. You can reach the firm at (843) 620-1100 or through the contact page.

Frequently Asked Questions About Federal Trial

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026