Trial proceedings and motions

AuthorGordon P. Cleary
Trial Motions
§200 In General
§201 Voir Dire
§202 Opening Statements
§202.1 Checklist on Opening Statements
§203 Closing Arguments
§203.1 Checklist on Closing Arguments
§210 Motions in Limine
§210.1 Appealability of Motions In Limine
§211 Conditional Relevance
§212 Curative Admissibility
§220 Motion to Strike
§230 Motion to Voir Dire Witness
§240 Request for Limiting Instructions
§250 Motions Heard Outside Presence of Jury
§251 Pretrial Testimony by Accused
§251.1 Special Cases: Testimony by the Accused in Criminal Cases (Arguments by the Prosecutor)
§252 Attacking Weight or Credit to Be Given Evidence
§260 Practice Pointers
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§200 In General
Certain trial proceedings, including voir dire, opening statement, and closing argument, have various requirements
that must be followed to ensure compliance with procedural and evidentiary rules. In addition, certain trial motions
have foundational requirements that must be met before a motion is properly made and preserved for the record. This
chapter explains those foundational requirements for trial proceedings including voir dire, opening statement and closing
argument and a variety of trial motions.
With respect to trial proceedings, if you raise an objection to your opponent’s conduct and that objection is over-
ruled, or in the alternative, if you are precluded from making inquiry into a certain area on voir dire, or from making a
particular statement in opening or closing, you must take appropriate steps to ensure that you have preserved your rights
for appellate review. Similarly, once a motion has been properly made, and all appropriate foundation requirements
have been met, it does not matter whether the motion is granted or denied for purposes of appellate review. If the trial
court errs, the error will be preserved for the record and you will have laid the groundwork, through an appropriate
foundation, for appellate review and correction.
§201 Voir Dire
Voir dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a
case. Counsel’s role in the selection or rejection of a jury depends primarily upon where the case is brought. In most
federal courts, the trial judge conducts the voir dire. In most cases, counsel merely submit proposed written questions
for the court’s consideration. Alternatively, in most state courts, voir dire questioning is left to trial counsel, principally,
although the court may also inquire of the prospective jurors.
There are two principal methods of jury selection: the traditional method and the struck method. Each is described below.
The Traditional Method of Jury Selection
The traditional method of jury selection is as follows:
The clerk requests a venire panel from the jury room or lounge.
The marshal escorts the panel to the courtroom.
The clerk swears the entire panel.
The clerk places jury cards into a hopper where eventually they will be randomly selected.
The clerk then calls the appropriate number of jurors to hear the case.
NOTE: In civil cases there are generally six jurors and two alternates; in criminal cases there are generally twelve
jurors and two alternates.
The December 1991 Amendments to the Federal Rules of Civil Procedure abolished the institution of the alternate juror.
This was done largely as a result of the frustration of persons who were forced to sit through an entire trial, but who then
jurors at six persons, and courts are advised to seat additional jurors in order to avoid retrying the case in the event that one
of the six jurors must be excused. This rule also allows jurors to be excused for “good cause” without causing a mistrial.
Each juror is then selected randomly as the court pulls names from the hopper.
As the names are pulled they are placed on a board or chart by the clerk.
Once the names are selected the court gives preliminary instructions and may also pose some initial questions
to the jurors regarding knowledge of any of the attorneys or parties in the case, relationship to attorneys or
parties, ability to devote the time necessary to hear the case in its entirety, etc. In those jurisdictions that allow
for questioning by counsel, counsel are also given an opportunity to question prospective jurors at this time.
After initial questioning is completed by the court and counsel, the court may upon its own initiative, or at the
request of counsel, excuse any jurors for cause. These are jurors who have a personal interest in the outcome
of the litigation, or for one reason or another cannot be impartial and unbiased.
Any jurors excused for cause are then replaced by other veniremen who are questioned in a similar manner.
Counsel will then be asked to exercise any peremptory challenges.
NOTE: In most civil cases, each side is given three peremptory challenges. The December 1991 Revisions to
Federal Rules of Civil Procedure also changed the rule regarding the number of peremptory challenges. New Rule

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