Testimony, Exhibits, and Transcripts

Some individual judges or local rules of court require the prosecution to file a list of potential witnesses prior to trial, along with a list of exhibits that may be entered into evidence. These lists can provide a handy reference for reporters. Check the case file about a week before trial begins.

Prosecution witnesses take the stand first. Each can be cross-examined by the defense. If a witness is cross-examined, the prosecution is permitted a “redirect,” asking the witness only questions related to the topics discussed during cross-examination. You are free to speak to witnesses after they are excused by the court, unless the judge indicates the witness is subject to recall to the stand later in the trial. The witness, however, is not obligated to respond to your questions, and often may be advised by counsel not to do so.

At the end of the prosecution’s case-in-chief, the defense likely will make what is known as a Rule 29 motion. Named after Federal Rule of Criminal Procedure 29, the motion asks the judge to acquit the defendant because the prosecution’s evidence is insufficient to sustain a conviction. This motion may also be made after the conclusion of testimony by the defense witnesses. These motions are almost always denied because the prosecution’s case is rarely that weak. But if the motion is granted, the defendant goes free; the prosecution cannot appeal such a ruling and the defendant cannot be tried again in federal court on the same charges because of the constitutional protection against double jeopardy. If, however, the judge waits to rule on the motion until after the jury reaches a verdict, and that verdict is guilty, prosecutors can then appeal the judge’s acquittal.

During testimony, both sides will seek to introduce pieces of evidence. If the judge allows an item to be admitted, it becomes part of the public record of the case and should be available for members of the media to inspect and copy. However, your interest in seeing the item sometimes conflicts with the court’s interest in insuring none of the evidence is tampered with. This is another of those issues you’ll want to broach with your contact person in the clerk’s office. Getting a copy of the exhibit from the party that introduced it is another option you can pursue.

Transcripts of courtroom proceedings are provided to the court and litigants by a court reporter. Many court reporters are trained in what is called real-time court reporting, which makes a daily copy of a transcript available, for a fee.

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