 As we've seen, the case of the United States versus Angela Smith was resolved without trial, when Smith entered a guilty plea to one count of conspiracy to distribute cocaine. But the case against Smith's co-defendant, Michael Jones, is still pending. And Jones' case differs from Smith's case in several important ways. As we know, Smith had no prior criminal record. But Jones has prior convictions for grand theft and assault with a dangerous weapon. In addition, the charges against Jones are even more serious than those against Smith. Like Smith, Jones was indicted on two felony counts arising from the alleged distribution of 540 grams of cocaine to Agent Brown. Unlike Smith, however, Jones has also been indicted on a third felony count, the one charging him with possession, with intent to distribute the two kilograms of cocaine found in the apartment he shared with Lawrence Green. Indeed, from the government's perspective, we'll say that Jones is considered a very serious criminal offender. Such factors as the amount of drugs involved in his charges, the leading role he appears to have played in the sale of drugs to Brown and his criminal history indicate to the government that Jones is heavily involved in the distribution of illegal drugs. The government views him as an habitual criminal offender who is predisposed to support himself by selling illegal drugs. It hopes that he will be convicted of the charges pending against him, and that upon conviction he will be incarcerated for a lengthy period of time. With these considerations in mind, the government decides that a plea agreement with Jones is unlikely. On the other hand, Jones continues to deny his guilt and wants to go to trial. Sure, I was in the van when the undercover came over, and I heard him ask Angela about selling them some coke. But I told Angela, if you want to be selling drugs, then you get out of this van. And that's what she did. Now, I don't know what she did after she left, but if it was selling drugs, I don't know nothing about that. I see what you're saying. See, the problem is that Smith says that you were in on it, that you gave Smith the cocaine in your apartment, and then you went out in the van together hoping to make a sale. Angela, I never did trust her. She's lying. Tell them what they want to get her. Save her own skin trying to get herself probation or something. Right. I just wanted you to know that she will be testifying for the government to try. Ain't that something? She's lying, and they believe her. They want to believe her just because I got two prior convictions. They think I'm big time or something, but I'm not. OK. Now, what about the two kilos of cocaine they found in the apartment when you were arrested? Now, look. All I do is sublet from Lawrence Green. And I was Lawrence's cocaine. You see, about a half an hour before the police got there, I saw Lawrence with that cookie tin. Now, I didn't know there was cocaine in it at the time. Now, I can tell the jury that, can I? You can if you want to. The problem with that is then the jury would learn about your two prior convictions. Was there anyone in the apartment that morning who could serve as a witness? Sure. My friend Sharon was there when Lawrence was fussing around with that cookie tin. We both was there. So Sharon can tell them that she saw Lawrence with the package. Yes, sir, we can go to trial in this case. As you can see, the case of United States versus Michael Jones will go to trial. But where will the Jones trial be held? Criminal rule 18 requires that, with certain limited exceptions, the prosecution and trial of criminal defendants must take place in the federal judicial district where the offense was allegedly committed. Michael Jones will therefore be tried in the judicial district, which includes the Centerville section of our hypothetical town. The case of United States versus Jones will also be tried before a jury rather than a judge. Why is that? Well, the Sixth Amendment to our Constitution guarantees that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. Rule 23 of the federal rules of criminal procedure embodies the Sixth Amendment right to trial by jury. It states that cases required to be tried by a jury shall be so tried unless the defendant waves a jury trial in writing with the approval of the court and the consent of the government. If the waiver requirements of rule 23 are satisfied in a given case, that case is tried by a judge instead of a jury. While the great majority of criminal cases which go to trial are decided by juries, many of them are decided by judges or magistrates sitting without a jury. Rule 23 also provides for a jury of 12 people unless the parties agree that the case shall be tried to a jury of less than 12. At this point, you may be asking, what does the right to trial by jury mean as a practical matter? It means that after hearing the evidence, a jury of 12 citizens, laypersons from the defendant's community, decides whether the defendant is guilty or not. The proceeding at which the jury hears the evidence receives instruction on the law and decides the case is, of course, the trial. In order to serve on a jury, each juror must be impartial, that is, capable of reviewing the evidence presented by both sides fairly and with an open mind. The jurors return their verdict after deliberating in secret. The jury's verdict must also be unanimous and based solely upon the evidence in the case. How, then, is the jury selected in a criminal case? Like grand jurors, potential trial jurors are selected at random from a fair cross-section of the community in the district where the trial is held. When a case is ready for trial, the courtroom clerk calls the jury room and asks that a group or panel of these prospective jurors be sent to the courtroom. The jurors actually selected to try the case will be chosen from this panel. After the panel members arrive, either the judge or the lawyers in the case will begin asking them questions. The questioning of the potential jurors is called the voir dire. voir dire is a French term meaning to speak the truth. Most of the questioning takes place in open court, but questioning on more sensitive matters may take place at the bench. The questions asked during voir dire are designed to gather information about the prospective jurors. The court then evaluates this information and decides whether or not each prospective juror can decide the case fairly and impartially. Either lawyer can seek to prevent a potential juror from sitting on the case if the juror's answers indicate he cannot approach the case impartially. This is called challenging the juror for cause. If the judge agrees with the lawyer, he or she will then strike the prospective juror for cause. This means the prospective juror cannot sit on the jury. In addition to challenges for cause, both the prosecutor and the defense attorney have the right to strike a certain number of jurors from the panel without stating any reason whatsoever. The lawyers do this by making peremptory challenges. The lawyers exercise their peremptory challenges after the first 12 potential jurors are seated in the jury box. If a lawyer challenges a juror for cause, he or she must tell the judge the basis for the challenge. But a lawyer does not have to tell the judge the basis for a peremptory challenge. Whenever a lawyer believes that a particular juror will not respond favorably to his or her case, the lawyer can use a peremptory challenge to strike the juror from the panel. In other words, peremptory challenges can be made for a variety of reasons and are often made simply because a lawyer has a hunch or gut feeling that a prospective juror won't respond to his or her case. Notice that attorneys Johnson and Harrison take turns exercising their peremptory challenges. In addition, the judge announces the challenges to at a time so that the potential jurors cannot tell which lawyer has challenged a particular juror. Notice also that the challenged jurors are replaced by other prospective jurors. So that there are always 12 prospective jurors in the jury box while the lawyers are exercising their peremptory challenges. As you can see, the parties select the jury by making challenges for cause and peremptory challenges. In other words, they use the challenges available to them to remove panel members they do not want on the jury. The actual trial jurors will be the first 12 panel members who are not removed from the case by the exercise of challenges. Federal rule of criminal procedure 24 governs selection of trial jurors in federal court. This rule gives the court discretion to ask voir dire questions of the prospective jurors itself or to allow the lawyers in the case to handle the questioning. Most magistrates and district court judges elect to ask the questions themselves. When they do so, rule 24 requires that they consider asking any additional questions suggested by counsel. Rule 24 also sets limits on the number of peremptory challenges allowed each side in felony and misdemeanor cases. Finally, rule 24 provides for the selection of as many as six alternate jurors in each case. Alternate jurors are selected in the same manner as regular jurors. They hear the evidence in the case along with the rest of the jury members. But they do not help decide the case unless they are called upon to replace a regular juror. This may happen if a regular juror becomes ill or for some other reason cannot continue to serve as a juror in the case. After the jury is selected and sworn, each side makes an opening statement. The opening statement is the attorney's opportunity to explain to the jury what they intend to present as evidence during the course of the trial. The defense has three options available to it with respect to opening statements. It can make its opening statement immediately after the government's opening, reserve its opening statement until after the government has presented its case, or elect not to make any opening statement at all. Let's say that attorney Harrison decides to make an opening statement on behalf of her client, Michael Jones, right after the government's opening. And I'll ask you again to pay particular attention to the testimony of Angela Smith on this matter. Angela Smith was going to take that witness stand and tell you, yes, I sold drugs to Agent Brown, and so did the defendant in this case, Michael Jones. And after you've heard all of the evidence, ladies and gentlemen, including the testimony of Agent Brown, the testimony of the chemist, and the testimony of Angela Smith, the government is going to ask you to return a verdict of guilty on all three of the charges in this indictment. Thank you. Ms. Harrison, do you wish to give an opening statement at this time? Yes, thank you, Your Honor. Ms. Johnson, Mr. Jones, ladies and gentlemen of the jury, the evidence in this case will show that Michael Jones had nothing to do with the sale of any cocaine to Agent Brown. The evidence will also show that the cocaine that was recovered from the apartment belonged to Lawrence Green, not to Michael Jones. You'll also learn that it was Ms. Smith who made a deal to sell cocaine to Agent Brown in that park in Centerville, and Ms. Smith alone. And that's not the only deal Angela Smith cut for herself in this case, ladies and gentlemen. The evidence will show that once she was arrested, Ms. Smith made another kind of deal with the government. You'll learn that under the terms of this second deal. After the opening statements, the presentation of evidence begins. Throughout the trial, the law presumes that the defendant is innocent. It is the government's job to try to overcome this presumption and convince the jury by proof beyond a reasonable doubt that the defendant is guilty. Since the government carries the burden of proof, it presents its evidence first. It does so by calling its witnesses to the stand and asking them questions. The testimony of these witnesses, given in answer to the prosecutor's questions, becomes the government's evidence. The initial questioning of any witness by the attorney who calls the witness to the stand is called direct examination. Let's take a look at some of AUSA Johnson's direct examination of Agent Brown. Notice that on direct examination, the attorney asking the questions is not allowed to lead the witness. That is, the attorney may not ask questions that by their very wording suggest how the attorney would like the witness to answer the question. And did there come a time when you learned the name of the individual who handed you the drugs in return for the marked money? Yes. I later learned that her name was Angela Smith. Was Ms. Smith the passenger in the van you told us about? Yes, she was. Now, Ms. Smith had a conversation with the driver of the van before she got out of the van, didn't she? Objection, Your Honor. Counsel was leading the witness. Objection is sustained. Please, rephrase your question, Ms. Johnson. When a judge thinks that a lawyer's objection is valid, he or she will sustain the objection. If there's no basis for the objection, the judge will overrule it. Very well, Your Honor. At any time before Ms. Smith got out of the van, did she have a conversation with the driver of that van? Well, Ms. Smith looked over, Ms. Smith looked over at the driver and said something to him, but I couldn't hear what it was. What, if anything, did Ms. Smith do at that point? Right after she said something to the driver, she got out of the van and walked away with me. We went to a clearing in the woods. At that point, we made the... The defendant has the right to confront witnesses like Brown who testify against him. The right to confrontation is guaranteed to the defendant by the Sixth Amendment to the Constitution. The Sixth Amendment allows the defendant to confront and cross-examine each government witness after the prosecutor is done asking the witness questions on direct examination. The defense attorney's questions on cross-examination are usually designed to highlight evidence favorable to the defendant, or to show that the testimony the witness gave for the government is not true. Let's watch a portion of Attorney Harrison's cross-examination of Agent Brown. Agent Brown, you didn't see Michael Jones hand any drugs to Ms. Smith before she got out of the van, did you? No, I did not. And from the time you first approached the van until the time Ms. Smith got out of the van, you didn't see Mr. Jones with any drugs, did you? No. Your conversation at the van was with Smith, correct? That's correct. You never spoke with Jones, then? No. About drugs or anything else? No, I did not. And of course it was Smith who got out of the van and went into the clearing with you, right? That's right. Because you had negotiated the deal with Smith, right? Well... You and Smith did all the talking at the van, right? Yes, that's right. And she, excuse me, Smith was wearing this purse around her waist when you spoke with her at the van, right? That's right. And it was zipped closed at that point, wasn't it? I believe it was. Well, Agent Brown, was it zipped closed or wasn't it? Yes, it was. And the first time you saw any cocaine was when Smith unzipped her purse in the clearing. That's correct. And when Smith sold you the cocaine, you were what, more than a hundred feet from the van at that point? About that far. And Mr. Jones at that point wasn't present, was he? No, he was not. He stayed in the van. He stayed in the van the whole time, didn't he? Yeah, he stayed in the van. Under the rules of evidence, both the government and the defense are allowed to cross-examine witnesses after the witnesses complete their direct testimony. After the government presents all of its witnesses and introduces any physical or documentary evidence it may have, the defendant can ask the court to enter a judgment of acquittal on the charges in the indictment. Rule 29 of the federal rules of criminal procedure permits the defense to make such a motion. The rule permits the court to grant a motion for judgment of acquittal if it finds the evidence presented by the government is legally insufficient to permit a conviction on the charge at issue. As mentioned earlier, the government has the burden of proving the charges in the indictment by proof beyond a reasonable doubt. Thus, in order to grant a motion for judgment of acquittal, the court must conclude that based upon the evidence presented by the government, no reasonable juror could find that the charges had been proven beyond a reasonable doubt. Rule 29 allows the defense to renew its motion for judgment of acquittal after its own case has been presented and even after the trial is over. Of course, if the court denies a defendant's motion for a judgment of acquittal at the end of the government's case, the trial continues. At that point, it becomes the defense's turn to present evidence. However, the defense has no obligation to present any evidence whatsoever. The defendant doesn't have to testify, a point which attorney Harrison stresses to her client in the Jones case. I told you Angela was gonna lie. Now I wanna get up there and tell my side of the story. I know you do. But my concern is that if you do testify, the prosecutor will be allowed to question you about your prior convictions. I'm not so sure we want the jury to hear about your felony theft and assault convictions. I know, you told me that before, but I gotta write to testify, don't I? Absolutely. But if you do, here's what will happen. You may cross examine, Ms. Johnson. Thank you, Your Honor. Mr. Jones, are you the same Michael Jones who was convicted of grand theft in this state in case number F1443? I don't remember. Would it refresh your recollection to take a look at a certified copy of the judgment of conviction in that case? No, that's all right. I remember now, yeah, that was me. And are you also the same Michael Jones who was convicted of assault with a dangerous weapon in this state in case number F8989? Yeah, that was me too. That's what would happen. If you testify, the law would allow the jury to know that you had two prior felony convictions. The jury would be entitled to weigh that information deciding whether to believe your trial testimony. The jury hears that stuff. They won't believe a word I say. That's why I keep reminding you that you also have a right not to testify because your Fifth Amendment privilege against self-incrimination applies at trial. That means that your privilege to remain silent in the face of the government's accusations. But won't the jury think I'm trying to hide something if I don't testify? The jury will be instructed that you're not required to testify and the jury will be told that it cannot assume that you're guilty because you choose not to testify. The judge will tell them that. But then my friend Sharon will be our only witness. That's true. But Sharon will be a good witness and you'll argue that they ain't proved the case beyond a reasonable doubt, right? Right. All right, I see what you're saying. That I won't testify then. Attorney Harrison has raised an important point. Even in cases where the defendant does not testify and no other defense evidence is presented, the defense may still argue to the jury that it must acquit because the government has not met its burden of proof. So Jones decides not to testify. But his friend, Sharon Booth, is called as a defense witness. Ms. Booth testifies that she had seen Jones's roommate, Lawrence Green, with the cookie tin in his possession when she visited Jones in the apartment. And is this the cookie tin you saw Mr. Green holding? Yeah, that's it. What was he doing with it? He was just holding it in his hands. I didn't get to it. It was in the package, though. Because when I walked over to Lawrence, he seemed all nervous and everything and he just covered it up with his hands. And at approximately what time did you see Mr. Green holding this? I don't remember what time it was, but it was about the time that Michael Jones was taking a shower. I got tired of waiting for him, so I went down to the lobby of the building to buy a pack of cigarettes. And that's when I noticed the time. On cross-examination, the prosecutor's questioning reveals that Ms. Booth has known Defendant Jones for several years and considers him to be a close friend. Now, Ms. Booth, you said on direct examination that you're friends with Michael Jones, is it correct? Yeah. In fact, you're pretty good friends with Michael Jones. Isn't that fair to say? Well, yes. You've known him for about four years. About that long. You're good enough friends with Mr. Jones that you see him at least once or twice a week. Isn't that fair to say? Not every week, but about that much. And you wouldn't want Mr. Jones to get into any trouble, would you? Well, no, I mean, I don't... After all of the evidence in the case has been presented, but before the jury begins its deliberations, the judge must instruct the jury on the principles of law which govern the case. The government and the defense may disagree about which principles of law apply, however. So before instructing the jury, the judge must resolve any disagreements and decide which instructions are appropriate. Rule 30 of the federal rules of criminal procedure governs jury instructions. Rule 30 allows the attorneys for each side to file written requests for specific jury instructions with the court. In addition, under the rule, the court must tell the attorneys which instructions it intends to give the jury prior to closing argument. Rule 29.1 governs closing arguments to the jury. In its closing argument, each side summarizes the evidence and attempts to convince the jury that its interpretation of the evidence is correct. Rule 29.1 requires that the prosecution give its argument first. Next, the defense gives its closing argument. After the defense argument, the prosecution is permitted to give a final argument in rebuttal. In her closing argument for Mr. Jones, Attorney Harrison contends that the government has not met its burden of proof on any of the charges against Jones. Isn't it clear what happened that day in Centerville, ladies and gentlemen? If my client had really been involved in that drug deal, would Angela Smith have had to leave that van and go into the woods to sell Agent Brown the drugs? Of course not. If all three of those people that wanted to do a drug deal, the deal would have taken place right there at the van. But it didn't. It didn't because one of those three people didn't want anything to do with dealing drugs, and that one person was my client, Michael Jones. Doesn't the evidence show that Mr. Jones shook his head as if to say no when Smith turned to him? And isn't that why Smith and Brown had to leave that van and go into a clearing in the woods in order to make a deal of their own? And then Angela Smith comes in here and tells you about the second deal she made in this case. A deal that says the government will recommend that she serve as little as 15 months in prison. Attorney Harrison also argues that the two kilograms of cocaine found in the apartment belonged to Jones's roommate, Laurence Green. And how do you know that that cocaine belonged to Laurence Green? Well, first of all, Sharon Booth told you that she saw Laurence Green, not Michael Jones, with a container that morning. What kind of container? A cookie tin, ladies and gentlemen. The same cookie tin in which the drugs were later found. Government exhibit number nine. And when Ms. Booth came over to Laurence Green, you remember her testimony? He became all nervous. And you know why he was nervous, ladies and gentlemen. Because he had cocaine in his possession and he didn't want anyone else to know about it. So now you know who had possession of the two kilograms of cocaine. Laurence Green, not Michael Jones. And if you had any doubt about that, who took off after the DEA showed up? Not my client. Michael Jones didn't skip town after being charged in this case. He's here in Porto Bay fighting these charges. And then Angela Smith tells you, oh, Michael Jones and I got the cocaine we sold to Agent Brown from Michael's apartment. But can you believe Ms. Smith's testimony? Can you believe it when you know she's in here doing the best she can to earn herself a 15 month sentence? After closing arguments are completed, the judge instructs the jury on the principles of law which they must apply to the case. The jury then retires to a private room and begins its deliberations. The jury's deliberations may take minutes, hours, or days, depending on the complexity of the case. When the jury agrees upon a verdict, all parties convene again in open court. The verdict is then read. In the next and final segment of this video program, we'll learn what the jury's verdict was in the case of United States versus Michael Jones.