1. Initial appearance; detention hearings; review; arraignment
A Magistrate Judge presides at the initial appearance and detention hearing.
Defense counsel are encouraged, whenever the Magistrate Judge grants the government’s request for detention, to seek review of that decision by the District Judge.
Even where detention is confirmed, counsel may at any time seek review of the defendant’s status and release on conditions if circumstances warrant such request.
Surety (bail) bonds are, as a general rule, strongly disfavored. In lieu thereof, counsel should propose alternative conditions: e.g., third party custody, real estate property bonds, location monitoring, pretrial supervision, etc., or some combination thereof.
A Magistrate Judge presides at arraignment. The Magistrate Judge will set an initial date for pretrial motions.
As a general rule, defense counsel will have complete access to the prosecutor’s file. Motions for discovery under Rule 16, Jencks, Brady, etc. usually are not necessary.
Defense counsel should confirm their access to the prosecutor’s file at arraignment.
Once motions are filed, and before oppositions are to be filed, a status conference will be held to review the pending motions, rule on those that then can be ruled on (or are moot), determine which motions need further briefing or hearing and establish a schedule for such briefing or hearing.
Motions requiring an evidentiary hearing, such as motions to suppress, should contain a brief statement of the basis for the motion. It is not necessary, however, to submit a brief on the law until after the hearing, which often will conclude pronouncement of tentative findings of fact as to disputed evidence.
Motions not requiring a hearing should be accompanied by a supporting memo or brief.
4. Guilty Pleas
Guilty pleas are taken, on consent of the parties, before a United States Magistrate Judge, who prepares a Report and Recommendation recommending that the plea be accepted or rejected.
Following the proceedings before the Magistrate Judge, the defendant will be referred to the United States Pretrial Services and Probation Office for preparation of the presentence report.
Absent objection to the Magistrate Judge's Report, and on review of either a recording or transcript of the plea proceeding, the plea is accepted by written order.
5. Voir Dire
Voir dire may be conducted, on consent of the parties, before the United States Magistrate Judge.
Counsel participate in voir dire.
Prior to voir dire, counsel may prepare and submit a juror questionnaire; copies of questionnaires from other cases may be obtained from the Courtroom Deputy. If counsel cannot agree on the questionnaire, the court will resolve disputes.
The Clerk scans the questionnaires on discs for counsel. The court does not retain the original paper copies. Counsel may retain the discs for purposes of appellate review, if necessary. No public disclosure of the discs or any part of their contents is to be disclosed publicly without prior court order.
Counsel shall not ask prospective jurors about their place of residence; that information is on the questionnaire. If some reason exists to enquire about that information, counsel shall ask to ask the questions at sidebar, with the record to be sealed.
Voir dire may be conducted either in the presence of the venire, or without other prospective jurors being present.
Counsel shall make challenges for cause at sidebar following completion of questioning of a juror.
Counsel exercise peremptory challenges outside the presence of the jurors.
6. Trial Procedures; Examination; Objections, Etc.
See generally the discussion regarding Civil Cases - Courtroom and Trial Procedures.
7. Post-trial contact with jurors
To the extent jurors are willing to speak with counsel, counsel may speak with jurors in the courthouse. Thereafter counsel shall not initiate, either directly or indirectly, any contact with former jurors without prior court approval.