Trial Proceedings and Motions

AuthorGordon P. Cleary
§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
§252 Attacking Weight or Credit to Be Given Evidence
§260 Practice Pointers
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.
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 is as
• The clerk requests a venire panel from the
jury room or lounge.
• The marshal escorts the panel to the court-
The clerk swears the entire panel.
The clerk places jury cards into a hopper
where eventually they will be randomly
• 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.
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-
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)
FED. R. CIV. 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 FED. R. CI V. P.
47(c), advisory committee’s note.
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
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.
FED. R . CIV. 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.

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