Trial Proceedings and Motions

• Author: Gordon P. Cleary
• Pages: 53-92

2-1

2. TRIAL PROCEEDINGS AND

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

§200 TRIAL PROCEEDINGS AND MOTIONS 2-2

InGeneral

Certain trial proceedings, including voir dire,

opening statement, and closing argument, have various

requirements that must be followed to ensure compli-

ance with procedural and evidentiary rules. In addi-

tion, certain trial motions have foundational require-

ments that must be met before a motion is properly

made and preserved for the record. This chapter

explains those foundational requirements for trial pro-

ceedings 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 overruled, or in the alternative, if you

are precluded from making inquiry into a certain

area on voir dire, or from making a particular state-

ment in opening or closing, you must take appropri-

ate steps to ensure that you have preserved your

rights for appellate review. Similarly, once a motion

has been properly made, and all appropriate founda-

tion requirements have been met, it does not matter

whether the motion is granted or denied for purpos-

es 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 con-

ducts the voir dire. In most cases, counsel merely

submit proposed written questions for the court’s con-

sideration. 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 selec-

tion: 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 court-

room.

• 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 Feder-

al 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 could not

partake in the deliberations that followed. Federal

Rule of Civil Procedure 48 now fixes the minimum

number of 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 par-

ties, 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 opportuni-

ty 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 ques-

tioned in a similar manner.

• Counsel will then be asked to exercise any

peremptory challenges.

2-3 TRIAL MOTIONS §201

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 perempto-

ry challenges. New Rule 47(b) now limits the num-

ber of peremptory challenges to that number provid-

ed by federal statute. See 28 U.S.C. §1870. Current-

ly, three peremptory challenges are permitted. Id. In

many criminal cases, particularly felonies, each side

is entitled to six peremptory challenges.

• After all challenges are exhausted, the panel

is selected and the clerk swears the selected

jurors and alternates.

• Check state statutes or rules of procedure and

state case law to determine the nature and

scope of voir dire as well as any limitations

on, and numbers of, challenges.

There are a number of statutory provisions that

relate to qualifying, drawing and challenging jurors

found in the United States Code, Title 28. They are:

• 28 U.S.C. §1861 (qualifications and exemp-

tions)

• 28 U.S.C. §1862 (no juror disqualified

because of race or color)

• 28 U.S.C. §1864 (manner of drawing)

• 28 U.S.C. §1865 (apportioned in district)

• 28 U.S.C. §1866 (special juries and talesmen

for petit-jurors)

• 28 U.S.C. §1867 (venire; service and return)

• 28 U.S.C. §1869 (jurors not to serve more

than once a year)

• 28 U.S.C. §1870 (juror challenges)

F. R. C. P. 47(c) makes clear that:

• The court may in appropriate circumstances

excuse a juror during trial or

• The court may excuse a juror during jury

deliberations without causing a mistrial for:

• sickness

• family emergency, or

• juror misconduct

All are examples of appropriate grounds for

excusing a juror.

It is not, however, grounds for dismissal of a

juror that the juror refuses to join with fellow jurors

in reaching a unanimous verdict. See F. R. C. P.

47(c), advisory committee’s note.

TheStruckMethodofJurySelection

This alternative method of jury selection con-

sists of the following procedure:

• The clerk swears the entire venire panel.

• The clerk then places jury cards into the hopper.

• A pre-determined number of jurors are then

selected randomly from the hopper and each

is assigned a number in order.

NOTE: Usually the number is between 20 and

30 depending upon the number of challenges that

will be allowed in the particular case.

• A list of prospective jurors is then selected

from the hopper.

• The prospective jurors are directed by the

clerk to sit in the jury box.

• The court begins preliminary remarks to the

jury and the prospective jurors are questioned

individually by the court, and if allowed, by

counsel.

• Jurors who are unsuited for the case are

excused by the court.

• Challenges for cause are then discussed with

counsel at side bar.

• Jurors who are successfully challenged for

cause are excused.

• The clerk then gives counsel a roster sheet of

remaining jurors.

• Counsel may exercise the appropriate num-

ber of peremptory challenges.

• Once each side has exhausted its peremptory

challenges or waives the right to further chal-

lenges (if the number of peremptory challenges

has not been exhausted), the clerk reads the

names of the lowest numbered six or twelve

unchallenged jurors (depending upon whether

the case is civil or criminal in nature).

• Once those jurors have been selected they are

directed to sit in their appropriate seats in the

jury box.

• The next two unchallenged jurors (or in some

cases more than two if the court requires) are

selected as alternatives.

NOTE: The December 1991 Revisions to Fed-

eral Rules of Civil Procedure abolished the institu-

tion of the alternate juror. Federal Rule of Civil

Procedure 48 now fixes the minimum number of

jurors at six persons and courts are advised to seat

additional jurors to avoid retrying a case in the

event one of the six jurors must be excused.

F. R. C. P. 48 provides that unless the par-

ties otherwise stipulate, the verdict must be unani-

mous and no verdict may be taken if the jury is

reduced to a size fewer than six members.

• Once this is done, the entire selected jury is

sworn by the clerk.