Originally From:
Federal Criminal Procedure Litigation Manual 2016 – Hardcover Edition
Federal Criminal Procedure Litigation Manual 2016 – PDF eBook
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23-1 Text of Rule
Rule 23. Jury or Nonjury Trial
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury
unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
(b) Jury Size.
(1) In General. A jury consists of 12 persons unless this rule provides
otherwise.
(2) Stipulation for a Smaller Jury. At any time before the verdict, the
parties may, with the court’s approval, stipulate in writing that:
(A) the jury may consist of fewer than 12 persons; or
(B) a jury of fewer than 12 persons may return a verdict if the court
finds it necessary to excuse a juror for good cause after the trial begins.
(3) Court Order for a Jury of 11. After the jury has retired to deliberate,
the court may permit a jury of 11 persons to return a verdict, even without a
stipulation by the parties, if the court finds good cause to excuse a juror.
(c) Nonjury Trial. In a case tried without a jury, the court must find the
defendant guilty or not guilty. If a party requests before the finding of guilty or
not guilty, the court must state its specific findings of fact in open court or in a
written decision or opinion.
§ 23-2 Commentary
[A] In General
The Supreme Court has held that the Constitution guarantees a defendant a jury
trial if the aggregate maximum punishment for the charges exceeds six months. A
defendant charged with criminal contempt punishable by more than six months also
has a right to a jury trial. A defendant has a constitutional right to a unanimous
verdict by a jury in a federal criminal prosecution.
Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor
of Law at The George Washington University Law School. Professor Saltzburg is a
leading national expert on evidence and criminal procedure. His numerous writings
include the FEDERAL RULES OF EVIDENCE MANUAL, a six-volume treatise on the
Federal Rules of Evidence. He is the former Reporter for, and member of, the Federal
Rules of Criminal Procedure Advisory Committee and a former member of the
Federal Rules of Evidence Advisory Committee. He served as an American Bar
Association representative to the Advisory Committee on the Federal Rules of
Evidence during the "restyling" of the Rules. Before taking his current teaching
position, he taught for many years at the University of Virginia and served as Deputy
Assistant Attorney General in the Criminal Division of the U.S. Department of
Justice. He has also served as an Ex-Officio Member of the United States Sentencing
Commission and as the Director of the Tax Refund Fraud Task Force for the U.S.
Treasury Department.
David A. Schlueter is the Hardy Professor of Law and Director of Advocacy
Programs at St. Mary's University School of Law in San Antonio, Texas. Professor
Schlueter teaches evidence, trial advocacy, and constitutional law and has served as
both a criminal trial and appellate counsel. He has authored, co-authored, or edited
fourteen books on procedure, advocacy, and evidence, including the two volume
work, FEDERAL EVIDENCE TACTICS. Before joining the faculty at St. Mary's in 1983,
he served on active duty as an Army JAGC and for two years as legal counsel for the
Supreme Court of the United States. He is a fellow in the American Law Institute and
a Life Fellow in the American Bar Foundation. From 1988 until 2005, he served as
the Reporter for the Federal Rules of Criminal Procedure Advisory Committee.