Trials

• Pages: 163-211

163

TRIALS

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

1.

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.

1. ANTITRUST DIV., U.S. DEP’T OF JUSTIC E, ANTITRUST DIVISIO N MANUAL at

IV-73 (5th ed. 2012) (last updated Apr. 201 8) [hereinafter ANTITRUST DIV.

MANUAL], available at https://www.justice.gov/atr/file/761166/download.

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

2.

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.

3.

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

trial;

• 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).