A corporate or individual defendant indicted for a criminal violation
of the antitrust laws may choose to stand trial for the offense. This chapter
addresses key procedural and substantive issues that arise in the context of
a criminal antitrust trial.
A. Juries
Voir Dire
Voir dire enables counsel to obtain general background information
about potential jurors and evaluate whether they will be fair and impartial
to all parties. Because the procedure for jury selection varies among
districts and among judges within each district, the parties and the judge
should discuss voir dire procedure in a pretrial conference.1 In most
federal district courts, voir dire is conducted by the district judge. Counsel
may file a motion in advance of trial requesting that they be allowed to
participate in voir dire, but it is within the court’s discretion to accept or
deny such a request.2
Similarly, counsel may submit proposed voir dire questions to the
court,3 but the judge may exercise his or her discretion to adopt or decline
them. 4 Judges often issue written questionnaires, which potential jurors
complete before entering the courtroom; counsel may review the
completed questionnaires and use them to formulate additional questions
(when the judge permits counsel to participate in voir dire), and to evaluate
potential bias or impartiality.
IV-73 (5th ed. 2012) (last updated Apr. 201 8) [hereinafter ANTITRUST DIV.
MANUAL], available at
2. FED. R. CRIM. P. 24(a)(1); see United States v. Rodriguez, 162 F.3d 135,
148 (1st Cir. 1998).
3. FED. R. CRIM. P. 24(a)(2)(B).
4. See United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994).
164 International Antitrust Cartel Handbook
If permitted, counsel may submit questions pertinent to the parties,
facts, and legal issues involved in a case, including the jurors’ views on
foreign entities doing business in the U.S. and the role of the U.S.
government in regulating such activity. For example, in a Sherman Act
case against a Japanese company, the government proposed the following
voir dire question: “Do you have any problem with the federal government
enforcing U.S. price-fixing laws against foreign companies that do
business in the United States?”5
For Cause and Peremptory Challenges
a. Challenges For Cause
One ground for excluding a person from a jury is that such person
“may be unable to render impartial jury service.”6 A juror need not be
completely unbiased to serve, however: “It is sufficient if the jurors can
lay aside their impressions or opinions and render a verdict based on the
evidence presented in court.”7 Each party may challenge an unlimited
number of jurors for cause. 8 When exercising a challenge for cause,
counsel should present the reasons for challenging the juror’s impartiality.
A judge’s denial of a challenge for cause is appealable but is reviewed
under the highly deferential “manifest error” standard of review.9
b. Peremptory Challenges
The parties may also use peremptory challenges to exclude jurors
without stating a reason for the challenge.10 In a felony case such as a
Sherman Act prosecution, the government has six peremptory challenges,
and the defense (regardless of number of defendants) has ten peremptory
challenges.11 The parties and the court should discuss the court’s preferred
5. Proposed Voir Dire Questions of the United State s, United States v.
Mitsubishi Corp., Crim. No. 00-33 (E.D. Pa. Jan. 16, 2001).
6. 28 U.S.C. § 1866(c)(2).
7. Skilling v. United States, 561 U.S. 358, 398-99 (2010) (quoting Irvin v.
Dowd, 366 U.S. 717, 723 (1961)).
8. 28 U.S.C. §1866(c)(2).
9. Mu’Min v. Virginia, 500 U.S. 415, 428 (1991).
10. However, under the Eq ual Protection Clause of the Fourteenth
Amendment, a peremptory challenge may not be based solely on race or
gender. Batson v. Kentucky, 476 U.S. 79 (1986).
11. FED. R. CRIM. P. 24(b)(2).
Trials 165
method for exercising peremptory strikes in a pretrial conference, as this
procedure varies significantly among districts. If multiple defendants are
on trial, the court may, in its discretion, allot additional peremptory
challenges to the defense.12 Once a party has used all of its peremptory
challenges, it must show cause for any additional challenges.
Jury Consultants and Research
Jury consultants can be essential to a successful defense, especially in
a complex criminal antitrust trial. These professionals, often with
backgrounds in psychology or other behavioral sciences, study the
decision-making patterns and motivations of individuals asked to serve on
juries. With such potentially serious outcomes, criminal antitrust
prosecutions frequently necessitate the retention of a jury consultant for
the defendants. The Antitrust Division sometimes utilizes the services of
outside professional jury consultants in particularly complex international
cartel prosecutions. Professional jury consultants with experience in
criminal antitrust cases can:
help craft jury questionnaires specifically targeted to yield the
ideal juror;
assist in evaluating responses to juror questionnaires, drawing
upon the burgeoning field of jury research;
develop strategies on how to deploy your side’s limited number of
peremptory challenges;
provide strategic advice about which types of witnesses, evidence,
and questions are most effective based upon interviews with jurors
in previous cases;
help prepare and select witnesses for maximum effectiveness at
act as a mock jury during practice arguments and provide
feedback during debriefing sessions; and
aid in honing trial themes.13
12. FED. R. CRIM. P. 24(b).
13. For a more comprehensive review of the utility of jury consultants in
antitrust cases, consult Lisa C. Wood, Using Jury Consultants in Antitrust
Cases, 26 ANTITRUST 101 (Fall 2011).

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