Manual on Recurring Problemsin Criminal Trials

Fifth Edition

Federal Judicial Center 2001

By Honorable Donald S. VoorheesUnited States District JudgeWestern District of WashingtonSeattle, WashingtonEdited by Genevra Kay LovelandRevised to include cases decided during the Supreme Court’s2000–2001 term and United States Court of Appeals casesreported through 212 F.3d 306This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct education programsfor judicial branch employees. The views expressed are those of the authorand not necessarily those of the Federal Judicial Center.

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Contents

Preface xiCaveat xiiPart I. Representation of Defendant 1A.Pro Se Representation 11.Duty of court to determine that waiver of counsel is made knowingly and voluntarily 12.Right of defendant to appear pro se after commencement of trial 43.Appointment of standby counsel 44.Control over pro se defendant 55.Nonlawyer as assisting counsel 66.Hybrid representation 67.Role of court unchanged when accused appears pro se 68.When one of several defendants acts pro se 69.Constructive waiver 6B.Counsel Substitution 7Part II. Jury 10A.Waiver of Right to Jury Trial and Twelve-Person Jury 101.Waiver of right to jury trial 102.Waiver of right to have twelve persons on jury 113.Defendant may not waive right to unanimous verdict 12B.Batson v. Kentucky—Potential Striking by Court of Peremptory Challengeby Prosecution 121.Criteria for prima facie case of discrimination 13a.Cognizable group 13b.Defendant’s race 13c.Circumstances raising inference of discrimination 142.Procedure after prima facie case of discrimination hasbeen established 153.Permissible and impermissible reasons 16C.Jury-Related Problems 181.Challenges for cause 182.Peremptory challenges 183.Separation of jury 194.Simultaneous use of two juries 195.Anonymous jury 206.Release of juror names and addresses 207.Appointment of foreperson by court 208.Replacement of juror with alternate 219.Substitution of alternate after deliberations have begun 2110. Temporary disability of deliberating juror 2311. Communications between trial court and jury 23