7.4: Elections
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Learning Objectives
By the end of this section, you will be able to:
- Describe the stages in the election process
- Compare the primary and caucus systems
- Summarize how primary election returns lead to the nomination of the party candidates
Elections offer American voters the opportunity to participate in their government with little investment of time or personal effort. Yet voters should make decisions carefully. The electoral system allows them the chance to pick party nominees as well as office-holders, although not every citizen will participate in every step. The presidential election is often criticized as a choice between two evils, yet citizens can play a prominent part in every stage of the race and influence who the final candidates actually are.
Deciding to Run
Despite these problems, most elections will have at least one candidate per party on the ballot. In states or districts where one party holds a supermajority, such as Oklahoma, candidates from the other party may be discouraged from running because they don’t think they have a chance to win. 68 Candidates are likely to be moving up from prior elected office or are professionals, like lawyers, who can take time away from work to campaign and serve in office. 69
Another factor for potential candidates is whether the seat they are considering is competitive or open. A competitive seat describes a race where a challenger runs against the incumbent—the current office holder. An open seat is one whose incumbent is not running for reelection. Incumbents who run for reelection are very likely to win for a number of reasons, which are discussed later in this chapter. In fact, in the U.S. Congress, 95 percent of representatives and 82 percent of senators were reelected in 2014. 73 But when an incumbent retires, the seat is open and more candidates will run for that seat.
Many potential candidates will also decline to run if their opponent has a lot of money in a campaign war chest. War chests are campaign accounts registered with the Federal Election Commission, and candidates are allowed to keep earlier donations if they intend to run for office again. Incumbents and candidates trying to move from one office to another very often have money in their war chests. Those with early money are hard to beat because they have an easier time showing they are a viable candidate (one likely to win). They can woo potential donors, which brings in more donations and strengthens the campaign. A challenger who does not have money, name recognition, or another way to appear viable will have fewer campaign donations and will be less competitive against the incumbent.
Campaign Finance Laws
In the 2020 presidential election cycle, candidates for all parties raised a total of 5.7 billion dollars for campaigns. Congressional candidates raised $8.7 billion. 74 The amount raised by political action committees (PACs) , which are organizations created to raise and spend money to influence politics and contribute to candidates’ campaigns, was approximately $2.7 billion. 75 How does the government monitor the vast amounts of money that are now a part of the election process?
The history of campaign finance monitoring has its roots in a federal law written in 1867, which prohibited government employees from asking Naval Yard employees for donations. 76 In 1896, the Republican Party spent about $16 million overall, which includes William McKinley’s $6–7 million campaign expenses. 77 This raised enough eyebrows that several key politicians, including Theodore Roosevelt, took note. After becoming president in 1901, Roosevelt pushed Congress to look for political corruption and influence in government and elections. 78 Shortly after, the Tillman Act (1907) was passed by Congress, which prohibited corporations from contributing money to candidates running in federal elections. Other congressional acts followed, limiting how much money individuals could contribute to candidates, how candidates could spend contributions, and what information would be disclosed to the public. 79
While these laws intended to create transparency in campaign funding, government did not have the power to stop the high levels of money entering elections, and little was done to enforce the laws. In 1971, Congress again tried to fix the situation by passing the Federal Election Campaign Act (FECA), which outlined how candidates would report all contributions and expenditures related to their campaigns. The FECA also created rules governing the way organizations and companies could contribute to federal campaigns, which allowed for the creation of political action committees. 80 Finally, a 1974 amendment to the act created the Federal Election Commission (FEC), which operates independently of government and enforces the elections laws.
While some portions of the FECA were ruled unconstitutional by the courts in Buckley v. Valeo (1976), such as limits on personal spending on campaigns by candidates not using federal money, the FEC began enforcing campaign finance laws in 1976. 81 Even with the new laws and the FEC, money continued to flow into elections. By using loopholes in the laws, political parties and political action committees donated large sums of money to candidates, and new reforms were soon needed. Senators John McCain (R-AZ) and Russ Feingold (former D-WI) cosponsored the Bipartisan Campaign Reform Act of 2002 (BCRA), also referred to as the McCain–Feingold Act. McCain–Feingold restricts the amount of money given to political parties, which had become a way for companies and PACs to exert influence. It placed limits on total contributions to political parties, prohibited coordination between candidates and PAC campaigns, and required candidates to include personal endorsements on their political ads. It also limited advertisements run by unions and corporations thirty days before a primary election and sixty days before a general election. 82
Soon after the passage of the McCain–Feingold Act, the FEC’s enforcement of the law spurred court cases challenging it. The first, McConnell v. Federal Election Commission (2003), resulted in the Supreme Court’s upholding the act’s restrictions on how candidates and parties could spend campaign contributions. But later court challenges led to the removal of limits on personal spending and ended the ban on ads run by interest groups in the days leading up to an election. 83 In 2010, the Supreme Court’s ruling on Citizens United v. Federal Election Commission led to the removal of spending limits on corporations. Justices in the majority argued that the BCRA violated a corporation’s free speech rights. 84
The court ruling also allowed corporations to place unlimited money into super PACs , or Independent Expenditure-Only Committees. These organizations cannot contribute directly to a candidate, nor can they strategize with a candidate’s campaign. They can, however, raise and spend as much money as they please to support or attack a candidate, including running advertisements and hosting events. 85 In 2020, the Senate Leadership Fund, a conservative super PAC, spent $293.7 million supporting conservative candidates while the Senate Majority PAC spent $230.4 million supporting liberal candidates. The total expenditure by super PACs alone was $2.13 billion in the 2020 election. 86 In 2012, the super PAC “Restore Our Future” raised $153 million and spent $142 million supporting conservative candidates, including Mitt Romney. “Priorities USA Action” raised $79 million and spent $65 million supporting liberal candidates, including Barack Obama. The total expenditure by super PACs alone was $609 million in the 2012 election and $345 million in the 2014 congressional elections. 87
Several limits on campaign contributions have been upheld by the courts and remain in place. Individuals may contribute up to $2,900 per candidate per election. This means a teacher living in Nebraska may contribute $2,900 to a candidate for their campaign to become to the Democratic presidential nominee, and if that candidate becomes the nominee, the teacher may contribute another $2,900 to their general election campaign. Individuals may also give $5,000 to political action committees and $36,500 to a national party committee. PACs that contribute to more than one candidate are permitted to contribute $5,000 per candidate per election, and up to $15,000 to a national party. PACs created to give money to only one candidate are limited to only $2,900 per candidate, however (Figure 7.12). 88 The amounts are adjusted every two years, based on inflation. These limits are intended to create a more equal playing field for the candidates, so that candidates must raise their campaign funds from a broad pool of contributors.
Nomination Stage
Although the Constitution explains how candidates for national office are elected, it is silent on how those candidates are nominated. Political parties have taken on the role of promoting nominees for offices, such as the presidency and seats in the Senate and the House of Representatives. Because there are no national guidelines, there is much variation in the nomination process. States pass election laws and regulations, choose the selection method for party nominees, and schedule the election, but the process also greatly depends on the candidates and the political parties.
States, through their legislatures, often influence the nomination method by paying for an election to help parties identify the nominee the voters prefer. Many states fund elections because they can hold several nomination races at once. In 2020, many voters had to choose a presidential nominee, U.S. Senate nominee, House of Representatives nominee, and state-level legislature nominee for their parties.
The most common method of picking a party nominee for state, local, and presidential contests is the primary. Party members use a ballot to indicate which candidate they desire for the party nominee. Despite the ease of voting using a ballot, primary elections have a number of rules and variations that can still cause confusion for citizens. In a closed primary, only members of the political party selecting nominees may vote. A registered Green Party member, for example, is not allowed to vote in the Republican or Democratic primary.  An open primary allows all voters to vote. In this system, a Green Party member is allowed to pick either a Democratic or Republican ballot when voting.
For state-level office nominations, or the nomination of a U.S. Senator or House member, some states use the top-two primary method. A top-two primary, sometimes called a jungle primary, pits all candidates against each other, regardless of party affiliation. The two candidates with the most votes become the final candidates for the general election. Thus, two candidates from the same party could run against each other in the general election. In one California congressional district, for example, four Democrats and two Republicans all ran against one another in the June 2012 primary. The two Republicans received the most votes, so they ran against one another in the general election in November. 89 In 2016, thirty-four candidates filed to run to replace Senator Barbara Boxer (D-CA). In the end, two Democratic women of color emerged to compete head-to-head in the general election. California attorney general Kamala Harris eventually won the seat on Election Day, helping to quadruple the number of women of color in the U.S. Senate overnight. She subsequently ran for vice president in 2020 on the Democratic ticket and now serves in that capacity. More often than not, however, the top-two system is used in state-level elections for non-partisan elections, in which none of the candidates are allowed to declare a political party.
In general, parties do not like nominating methods that allow non-party members to participate in the selection of party nominees. In 2000, the Supreme Court heard a case brought by the California Democratic Party, the California Republican Party, and the California Libertarian Party. 90 The parties argued that they had a right to determine who associated with the party and who participated in choosing the party nominee. The Supreme Court agreed, limiting the states’ choices for nomination methods to closed and open primaries.
Despite the common use of the primary system, at least six states (Alaska, Colorado, Hawaii, Idaho, Iowa, and Nevada) regularly use caucuses for presidential, state, and local-level nominations. A caucus is a meeting of party members in which nominees are selected informally. Caucuses are less expensive than primaries because they rely on voting methods such as dropping marbles in a jar, placing names in a hat, standing under a sign bearing the candidate’s name, or taking a voice vote. Volunteers record the votes and no poll workers need to be trained or compensated. The party members at the caucus also help select delegates, who represent their choice at the party’s state- or national-level nominating convention.
The Iowa Democratic Caucus is well-known for its spirited nature. The party’s voters are asked to align themselves into preference groups, which often means standing in a room or part of a room that has been designated for the candidate of choice. The voters then get to argue and discuss the candidates, sometimes in a very animated and forceful manner. After a set time, party members are allowed to realign before the final count is taken. The caucus leader then determines how many members support each candidate, which determines how many delegates each candidate will receive.
The caucus has its proponents and opponents. Many argue that it is more interesting than the primary and brings out more sophisticated voters, who then benefit from the chance to debate the strengths and weaknesses of the candidates. The caucus system is also more transparent than ballots. The local party members get to see the election outcome and pick the delegates who will represent them at the national convention. There is less of a possibility for deception or dishonesty. Opponents point out that caucuses take two to three hours and are intimidating to less experienced voters. These factors, they argue, lead to lower voter turnout. And they have a point—voter turnout for a caucus is generally 20 percent lower than for a primary. 91
Regardless of which nominating system the states and parties choose, states must also determine which day they wish to hold their nomination. When the nominations are for state-level office, such as governor, the state legislatures receive little to no input from the national political parties. In presidential election years, however, the national political parties pressure most states to hold their primaries or caucuses in March or later. Only Iowa, New Hampshire, and South Carolina are given express permission by the national parties to hold presidential primaries or caucuses in January or February (Figure 7.13). Both political parties protect the three states’ status as the first states to host caucuses and primaries, due to tradition and the relative ease of campaigning in these smaller states.
Other states, especially large states like California, Florida, Michigan, and Wisconsin, often are frustrated that they must wait to hold their presidential primary elections later in the season. Their frustration is reasonable: candidates who do poorly in the first few primaries often drop out entirely, leaving fewer candidates to run in caucuses and primaries held in February and later. In 2008, California, New York, and several other states disregarded the national party’s guidelines and scheduled their primaries the first week of February. In response, Florida and Michigan moved their primaries to January and many other states moved forward to March. This was not the first time states participated in frontloading and scheduled the majority of the primaries and caucuses at the beginning of the primary season. It was, however, one of the worst occurrences. States have been frontloading since the 1976 presidential election, with the problem becoming more severe in the 1992 election and later. 92
Political parties allot delegates to their national nominating conventions based on the number of registered party voters in each state. California, the state with the most Democrats, sent 494 delegates to the 2020 Democratic National Convention, while Wyoming, with far fewer Democrats, sent only 14 delegates. 93 When the national political parties want to prevent states from frontloading, or doing anything else they deem detrimental, they can change the state’s delegate count, which in essence increases or reduces the state’s say in who becomes the presidential nominee. In 1996, the Republicans offered bonus delegates to states that held their primaries and caucuses later in the nominating season. 94 In 2008, the national parties ruled that only Iowa, South Carolina, and New Hampshire could hold primaries or caucuses in January. Both parties also reduced the number of delegates from Michigan and Florida as punishment for those states’ holding early primaries. 95 Despite these efforts, candidates in 2008 had a very difficult time campaigning during the tight window caused by frontloading.
One of the criticisms of the modern nominating system is that parties today have less influence over who becomes their nominee. In the era of party “bosses,” candidates who hoped to run for president needed the blessing and support of party leadership and a strong connection with the party’s values. Now, anyone can run for a party’s nomination. The candidates with enough money to campaign the longest, gaining media attention, momentum, and voter support are more likely to become the nominee than candidates without these attributes, regardless of what the party leadership wants.
This new reality has dramatically increased the number of politically inexperienced candidates running for national office. In 2012, for example, eleven candidates ran multistate campaigns for the Republican nomination. Dozens more had their names on one or two state ballots. With a long list of challengers, candidates must find more ways to stand out, leading them to espouse extreme positions or display high levels of charisma. Add to this that primary and caucus voters are often more extreme in their political beliefs, and it is easy to see why fewer moderates become party nominees. The 2016 primary campaign by President Donald Trump shows that grabbing the media’s attention with fiery partisan rhetoric can get a campaign started strong. This does not guarantee a candidate will make it through the primaries, however. In 2020, the most moderate of the front-runners (Joe Biden) won the Democratic nomination.
Convention Season
Once it is clear who the parties’ nominees will be, presidential and gubernatorial campaigns enter a quiet period. Candidates run fewer ads and concentrate on raising funds for the fall. This is a crucial time because lack of money can harm their chances. The media spends much of the summer keeping track of the fundraising totals while the political parties plan their conventions. State parties host state-level conventions during gubernatorial elections, while national parties host national conventions during presidential election years.
Party conventions are typically held between June and September, with state-level conventions earlier in the summer and national conventions later. Conventions normally last four to five days, with days devoted to platform discussion and planning and nights reserved for speeches (Figure 7.14). Local media covers the speeches given at state-level conventions, showing speeches given by the party nominees for governor and lieutenant governor, and perhaps important guests or the state’s U.S. senators. The national media covers the Democratic and Republican conventions during presidential election years, mainly showing the speeches. Some cable networks broadcast delegate voting and voting on party platforms. Members of the candidate’s family and important party members generally speak during the first few days of a national convention, with the vice presidential nominee speaking on the next-to-last night and the presidential candidate on the final night. The two chosen candidates then hit the campaign trail for the general election. The party with the incumbent president holds the later convention, so in 2016, the Democrats held their convention after the Republicans. In 2020, wIth the COVID-19 pandemic raging, both major parties modified their conventions to involve fewer people. The Republicans had some in-person gatherings, but mostly met virtually, while the Democrats were almost entirely virtual. 96
There are rarely surprises at the modern convention. Thanks to party rules, the nominee for each party is generally already clear. In 2008, John McCain had locked up the Republican nomination in March by having enough delegates, while in 2012, President Obama was an unchallenged incumbent and hence people knew he would be the nominee. In 2016, both apparent nominees (Democrat Hillary Clinton and Republican Donald Trump) faced primary opponents who stayed in the race even when the nominations were effectively sewn up—Democrat Bernie Sanders and Republican Ted Cruz—though no “convention surprise” took place. The naming of the vice president is generally not a surprise either. Even if a presidential nominee tries to keep it a secret, the news often leaks out before the party convention or official announcement. In 2004, the media announced John Edwards was John Kerry’s running mate. The Kerry campaign had not made a formal announcement, but an amateur photographer had taken a picture of Edwards’ name being added to the candidate’s plane and posted it to an aviation message board. In 2020, strong rumors circulated about Senator Kamala Harris (D-CA) being tapped for the ticket, with confirmation of that choice coming days later. 97
Despite the lack of surprises, there are several reasons to host traditional conventions. First, the parties require that the delegates officially cast their ballots. Delegates from each state come to the national party convention to publicly state who their state’s voters selected as the nominee.
Second, delegates will bring state-level concerns and issues to the national convention for discussion, while local-level delegates bring concerns and issues to state-level conventions. This list of issues that concern local party members, like limiting abortions in a state or removing restrictions on gun ownership, are called planks , and they will be discussed and voted upon by the delegates and party leadership at the convention. Just as wood planks make a platform, issues important to the party and party delegates make up the party platform. The parties take the cohesive list of issues and concerns and frame the election around the platform. Candidates will try to keep to the platform when campaigning, and outside groups that support them, such as super PACs, may also try to keep to these issues.
Third, conventions are covered by most news networks and cable programs. This helps the party nominee get positive attention while surrounded by loyal delegates, family members, friends, and colleagues. For presidential candidates, this positivity often leads to a bump in popularity, so the candidate gets a small increase in favorability. If a candidate does not get the bump, however, the campaign manager has to evaluate whether the candidate is connecting well with the voters or is out of step with the party faithful. In 2004, John Kerry spent the Democratic convention talking about getting U.S. troops out of the war in Iraq and increasing spending at home. Yet after his patriotic and positive convention, Gallup recorded no convention bump and the voters did not appear more likely to vote for him.
General Elections and Election Day
The general election campaign period occurs between mid-August and early November. These elections are simpler than primaries and conventions, because there are only two major party candidates and a few minor party candidates. About 50 percent of voters will make their decisions based on party membership, so the candidates will focus on winning over independent voters and visiting states where the election is close. 98 In 2016, both candidates sensed shifts in the electorate that led them to visit states that were not recently battleground states. Clinton visited Republican stronghold Arizona as Latino voter interest surged. Defying conventional campaign movements, Trump spent many hours over the last days of the campaign in the Democratic Rust Belt states, namely Michigan and Wisconsin. President Trump ended up winning both states and industrial Pennsylvania by narrow margins, allowing him to achieve a comfortable majority in the Electoral College. In 2020, during the COVID-19 pandemic, the two major-party nominees adopted very different approaches. In seeking re-election, President Trump eschewed CDC recommendations for social distancing and held large in-person rallies, while Joe Biden made fewer public appearances, which were largely carried to audiences virtually. 99
Debates are an important element of the general election season, allowing voters to see candidates answer questions on policy and prior decisions. While most voters think only of presidential debate s , the general election season sees many debates. In a number of states, candidates for governor are expected to participate in televised debates, as are candidates running for the U.S. Senate. Debates not only give voters a chance to hear answers, but also to see how candidates hold up under stress. Because television and the Internet make it possible to stream footage to a wide audience, modern campaign managers understand the importance of a debate (Figure 7.15).
In 1960, the first televised presidential debate showed that answering questions well is not the only way to impress voters. Senator John F. Kennedy, the Democratic nominee, and Vice President Richard Nixon, the Republican nominee, prepared in slightly different ways for their first of four debates. Although both studied answers to possible questions, Kennedy also worked on the delivery of his answers, including accent, tone, facial displays, and body movements, as well as overall appearance. Nixon, however, was ill in the days before the debate and appeared sweaty and gaunt. He also chose not to wear makeup, a decision that left his pale, unshaven face vulnerable. 100 Interestingly, while people who watched the debate thought Kennedy won, those listening on radio saw the debate as more of a draw.
Insider Perspective
Inside the Debate
Debating an opponent in front of sixty million television voters is intimidating. Most presidential candidates spend days, if not weeks, preparing. Newspapers and cable news programs proclaim winners and losers, and debates can change the tide of a campaign. Yet, Paul Begala, a strategist with Bill Clinton’s 1992 campaign, saw debates differently.
In one of his columns for CNN, Begala recommends that candidates relax and have a little fun. Debates are relatively easy, he says, more like a scripted program than an interview that puts candidates on the spot. They can memorize answers and deliver them convincingly, making sure they hit their mark. Second, a candidate needs a clear message explaining why the voters should pick them. Is the candidate a needed change? Or the only experienced candidate? If the candidate’s debate answers reinforce this message, the voters will remember. Third, candidates should be humorous, witty, and comfortable with their knowledge. Trying to be too formal or cramming information at the last minute will cause the candidate to be awkward or get overwhelmed. Finally, a candidate is always on camera. Making faces, sighing at an opponent, or simply making a mistake gives the media something to discuss and can cause a loss. In essence, Begala argues that if candidates wish to do well, preparation and confidence are key factors. 101
Is Begala’s advice good? Why or why not? What positives or negatives would make a candidate’s debate performance stand out for you as a voter?
While debates are not just about a candidate’s looks, most debate rules contain language that prevents candidates from artificially enhancing their physical qualities. For example, prior rules have prohibited shoes that increase a candidate’s height, banned prosthetic devices that change a candidate’s physical appearance, and limited camera angles to prevent unflattering side and back shots. Candidates and their campaign managers are aware that visuals matter.
Debates are generally over by the end of October, just in time for Election Day. Beginning with the election of 1792, presidential elections were to be held in the thirty-four days prior to the “first Wednesday in December.” 102 In 1845, Congress passed legislation that moved the presidential Election Day to the first Tuesday after the first Monday in November, and in 1872, elections for the House of Representatives were also moved to that same Tuesday. 103 The United States was then an agricultural country, and because a number of states restricted voting to property-owning males over twenty-one, farmers made up nearly 74 percent of voters. 104 The tradition of Election Day to fall in November allowed time for the lucrative fall harvest to be brought in and the farming season to end. And, while not all members of government were of the same religion, many wanted to ensure that voters were not kept from the polls by a weekend religious observance. Finally, business and mercantile concerns often closed their books on the first of the month. Rather than let accounting get in the way of voting, the bill’s language forces Election Day to fall between the second and eighth of the month.
The Electoral College
Once the voters have cast ballots in November and all the election season madness comes to a close, races for governors and local representatives may be over, but the constitutional process of electing a president has only begun. The electors of the Electoral College travel to their respective state capitols and cast their votes in mid-December, often by signing a certificate recording their vote. In most cases, electors cast their ballots for the candidate who won the majority of votes in their state. The states then forward the certificates to the U.S. Senate.
The number of Electoral College votes granted to each state equals the total number of representatives and senators that state has in the U.S. Congress or, in the case of Washington, DC, as many electors as it would have if it were a state. The number of representatives may fluctuate based on state population, which is determined every ten years by the U.S. Census, mandated by Article I, Section 2, of the Constitution. However, since the Permanent Apportionment Act of 1929, the total number of representatives in Congress has been fixed at 435. Accordingly, for the 2024 presidential election, there will be a total of 538 electors in the Electoral College, and a majority of 270 electoral votes is required to win the presidency.
Once the electoral votes have been read by the president of the Senate (i.e., the vice president of the United States) during a special joint session of Congress in January, the presidential candidate who received the majority of electoral votes is officially named president. Should a tie occur, the sitting House of Representatives elects the president, with each state receiving one vote. While this rarely occurs, both the 1800 and the 1824 elections were decided by the House of Representatives. As election night 2016 played out after the polls closed, one such scenario was in play for a tie. However, the states that Hillary Clinton needed to make that tie were lost narrowly to Trump. Had the tie occurred, the Republican House would have likely selected Trump as president anyway. As Election Day 2020 neared, the context favored Biden, yet it was still possible that Trump might narrowly win key battleground states and find a way to win the Electoral College. This did not occur, as Biden won the popular vote and the Electoral College decisively. Still, based on the erroneous assumption that the election had been stolen, thousands of Trump supporters stormed the U.S. Capitol building to prevent the House and Senate from completing a final tabulation of Biden's victory. The bloody attempted insurrection did not succeed, however, and the votes were finalized in the early overnight hours of January 7th with Vice President Mike Pence presiding.
As political parties became stronger and the Progressive Era’s influence shaped politics from the 1890s to the 1920s, states began to allow state parties rather than legislators to nominate a slate of electors. Electors cannot be elected officials nor can they work for the federal government. Since the Republican and Democratic parties choose faithful party members who have worked hard for their candidates, the modern system decreases the chance they will vote differently from the state’s voters.
There is no guarantee of this, however. Occasionally there are examples of faithless electors . In 2000, the majority of the District of Columbia’s voters cast ballots for Al Gore, and all three electoral votes should have been cast for him. Yet one of the electors cast a blank ballot, denying Gore a precious electoral vote, reportedly to contest the unequal representation of the District in the Electoral College. In 2004, one of the Minnesota electors voted for John Edwards, the vice presidential nominee, to be president (Figure 7.16) and misspelled the candidate’s last name in the process. Some believe this was a result of confusion rather than a political statement. In the 2016 election, after a campaign to encourage faithless electors in the wake of what some viewed as controversial results, there were seven faithless electors: four in the state of Washington, two in Texas, and one in Hawaii. The electors’ names and votes are publicly available on the electoral certificates, which are scanned and documented by the National Archives and easily available for viewing online.
In forty-eight states and the District of Columbia, the candidate who wins the most votes in November receives all the state’s electoral votes, and only the electors from that party will vote. This is often called the winner-take-all system. In two states, Nebraska and Maine, the electoral votes are divided. The candidate who wins the state gets two electoral votes, but the winner of each congressional district also receives an electoral vote. In 2008, for example, Republican John McCain won two congressional districts and the majority of the voters across the state of Nebraska, earning him four electoral votes from Nebraska. Obama won in one congressional district and earned one electoral vote from Nebraska. 105 In 2020, Republican Donald Trump won one congressional district in Maine, and therefore one electoral vote, even though Joe Biden won the state overall, receiving a total of three electoral votes from Maine. This Electoral College voting method is referred to as the district system.
Midterm Elections
Presidential elections garner the most attention from the media and political elites. Yet they are not the only important elections. The even-numbered years between presidential years, like 2014 and 2018, are reserved for congressional elections—sometimes referred to as midterm elections because they are in the middle of the president’s term. Midterm elections are held because all members of the House of Representatives and one-third of the senators come up for reelection every two years.
During a presidential election year, members of Congress often experience the coattail effect, which gives members of a popular presidential candidate’s party an increase in popularity and raises their odds of retaining office. During a midterm election year, however, the president’s party often is blamed for the president’s actions or inaction. Representatives and senators from the sitting president’s party are more likely to lose their seats during a midterm election year. Many recent congressional realignments, in which the House or Senate changed from Democratic to Republican control, occurred because of this reverse-coattail effect during midterm elections. The most recent example is the 2018 election, in which control of the House returned to the Democratic Party after eight years of Republican control.


9.7: Conclusion
Africa was not isolated. Instead, oceans and deserts were “highways” in these periods. Aksum, the Western Sudanic states, Great Zimbabwe, and the Swahili coast were all commercially linked to Europe, the Mediterranean, the Arabian Peninsula, the Persian Gulf, Southeast Asia, and even China. Although there were local differences, the ruling classes in each of the states collected tribute from outlying areas and participated in long-distance trade. The wealth of these states supported labor specialization, urbanization, and other innovations.
African states contributed to great cultural change. Ethiopia, the Western Sudanic states, and the Swahili city-states all experienced religious transformations. Not only did Ethiopia serve as a sanctuary for both Christians and Muslims, but they also established their own Church, the Ethiopian Orthodox Church. Starting in the thirteenth century CE, Western Sudanic rulers converted to Islam, maintaining some of their pre-Islamic beliefs while building connections with the rest of the Islamic World. Medieval African cities like Timbuktu benefited from these connections. Traders were attracted as reports of African gold circulated far and wide. Taxing the gold trade, Western Sudanic rulers developed cities as both trading depots and places of scholarly learning. The Swahili in coastal East Africa also embraced Islam as one of the defining features of their identity. The urban style reflected the centrality of Islam, which offered a distinction of culture and refinement. All four states developed numerous other innovations, such as art, architecture, metal-working, agriculture, and political organization.
Many African societies remembered their own histories orally, using professionalized classes of historians, storytellers, and musicians, as well as proverbs and the teachings of elders. Over the past fifty years, historians have done more to incorporate oral traditions into the examination of the ancient past. Justly, linguistics and archaeology help to create a more accurate written history of the continent and reclaim African civilizations.


10.12: Lattice Energies and Solubility
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Lattice energies can also help predict compound solubilities. Let's consider a Born-Haber cycle for dissolving a salt in water. We can imagine this as the sum of two processes: (1) the vaporization of the salt to produce gaseous ions, characterized by the lattice enthalpy, and (2) the hydration of those ions to produce the solution. The enthalpy change for the overall process is the sum of those two steps. We know that the entropy change for dissolution of a solid is positive, so the solubility depends on the enthalpy change for the overall process.
Here we need to consider the trends in both the lattice energy E L and the hydration energy E H . The lattice energy depends on the sum of the anion and cation radii (r + + r - ), whereas the hydration energy has separate anion and cation terms. Generally the solvation of small ions (typically cations) dominates the hydration energy because of the 1/r 2 dependence.
\[E_{L} \alpha \frac{1}{r_{+}+ r_{-}}\]
\[E_{H} \alpha \frac{1}{r_{+}^{2}} + \frac{1}{r_{-}^{2}}\]
For salts that contain large anions, E L doesn't change much as r + changes. That is because the anion dominates the r + + r - term in the denominator of the formula for E L . On the other hand, E H changes substantially with r + , especially for small cations.
As a result, sulfate salts of small divalent cations, such as MgSO 4 (epsom salts), are soluble, whereas the lower hydration energy of Ba 2 + in BaSO 4 makes that salt insoluble (K sp = 10 -10 ).
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Left: E L diagram for sulfate salts. The large SO 4 2 - ion is size-mismatched to small cations such as Mg 2 + , which have large hydration energies, resulting soluble salts. With larger cations such as Ba 2 + , which have lower E H , the lattice energy exceeds the solvation enthalpy and the salts are insoluble.. Right: In the case of small anions such as F - and OH - , the lattice energy dominates with small cations such as transition metal ions (TM n + ), Mg 2 + , and Li + . Anion-cation size mismatch occurs with larger cations, such as Cs + and Ba 2 + , which make soluble fluoride salts. |
For small anions, E L is more sensitive to r + , whereas E H does not depend on r + as strongly. For fluorides and hydroxides, LiF is slightly soluble whereas CsF is very soluble, and Mg(OH) 2 is insoluble whereas Ba(OH) 2 is very soluble.
Putting both trends together, we see that low solubility is most often encountered when the anion and cation match well in their sizes , especially when one or both are multiply charged .
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Space-filling models showing the van der Waals surfaces of Ba 2 + and SO 4 2 - . The similarity in size of the two ions contributes to the low solubility of BaSO 4 in water. |
Combining all our conclusions about solubility, we note the following trends:
1) Increasing
size mismatch
between the anion and cation leads to greater solubility, so CsF and LiI are the most soluble alkali halides.
2) Increasing covalency leads to lower solubility in the salts (due to larger E L . For example, AgF, AgCl, AgBr, and AgI exhibit progressively lower solubility because of increasing covalency.
\(\ce{AgF > AgCl > AgBr > AgI}\)
3) Increasing the charge on the anion lowers the solubility because the increase in E L is large relative to the increase in E H .
4) Small, polyvalent cations (having large E H ) make soluble salts with large, univalent anions such as I - , NO 3 - , ClO 4 - , PF 6 - , and acetate.
Examples: Salts of transition metal and lanthanide ions
- Ln 3 + : Nitrate salts are soluble, but oxides and hydroxides are insoluble.
- Fe 3 + : Perchlorate is soluble, but sulfate is insoluble.
5) Multiple charged anions such as O 2- , S 2- , PO 4 3 - , and SO 4 2 - make insoluble salts with most M 2+ , M 3+ , and M 4+ metals.


13.1: The Trial Process
Chapter 13 - Bail and the Trial Process
The Trial Process [131]
When a trial occurs, the first order of business is to select a jury. (in a civil case of any consequence, either party can request one, based on the Sixth Amendment to the US Constitution.) The judge and sometimes the lawyers are permitted to question the jurors to be sure that they are unbiased. This questioning is known as the voir dire (pronounced vwahr-DEER). This is an important process, and a great deal of thought goes into selecting the jury, especially in high-profile cases. A jury panel can be as few as six persons, or as many as twelve, with alternates selected and sitting in court in case one of the jurors is unable to continue. In a long trial, having alternates is essential; even in shorter trials, most courts will have at least two alternate jurors.
In both criminal and civil trials, each side has opportunities to challenge potential jurors for cause. For example, in the Robinsons’ case against Audi, the attorneys representing Audi will want to know if any prospective jurors have ever owned an Audi, what their experience has been, and if they had a similar problem (or worse) with their Audi that was not resolved to their satisfaction. If so, the defense attorney could well believe that such a juror has a potential for a bias against her client. In that case, she could use a challenge for cause, explaining to the judge the basis for her challenge. The judge, at her discretion, could either accept the for-cause reason or reject it.
Even if an attorney cannot articulate a for-cause reason acceptable to the judge, he may use one of several peremptory challenges that most states (and the federal system) allow. A trial attorney with many years of experience may have a sixth sense about a potential juror and, in consultation with the client, may decide to use a peremptory challenge to avoid having that juror on the panel.
After the jury is sworn and seated, the plaintiff’s lawyer makes an opening statement, laying out the nature of the plaintiff’s claim, the facts of the case as the plaintiff sees them, and the evidence that the lawyer will present. The defendant’s lawyer may also make an opening statement or may reserve his right to do so at the end of the plaintiff’s case.
The plaintiff’s lawyer then calls witnesses and presents the physical evidence that is relevant to her proof. The direct testimony at trial is usually far from a smooth narration. The rules of evidence (that govern the kinds of testimony and documents that may be introduced at trial) and the question-and-answer format tend to make the presentation of evidence choppy and difficult to follow.
Anyone who has watched an actual televised trial or a television melodrama featuring a trial scene will appreciate the nature of the trial itself: witnesses are asked questions about a number of issues that may or may not be related, the opposing lawyer will frequently object to the question or the form in which it is asked, and the jury may be sent from the room while the lawyers argue at the bench before the judge.
After direct testimony of each witness is over, the opposing lawyer may conduct cross-examination. This is a crucial constitutional right; in criminal cases it is preserved in the Constitution’s Sixth Amendment (the right to confront one’s accusers in open court). The formal rules of direct testimony are then relaxed, and the cross-examiner may probe the witness more informally, asking questions that may not seem immediately relevant. This is when the opposing attorney may become harsh, casting doubt on a witness’s credibility, trying to trip her up and show that the answers she gave are false or not to be trusted. This use of cross-examination, along with the requirement that the witness must respond to questions that are at all relevant to the questions raised by the case, distinguishes common-law courts from those of authoritarian regimes around the world.
Following cross-examination, the plaintiff’s lawyer may then question the witness again: this is called redirect examination and is used to demonstrate that the witness’s original answers were accurate and to show that any implications otherwise, suggested by the cross-examiner, were unwarranted. The cross-examiner may then engage the witness in re-cross-examination, and so on. The process usually stops after cross-examination or redirect.
During the trial, the judge’s chief responsibility is to see that the trial is fair to both sides. One big piece of that responsibility is to rule on the admissibility of evidence. A judge may rule that a particular question is out of order—that is, not relevant or appropriate—or that a given document is irrelevant. Where the attorney is convinced that a particular witness, a particular question, or a particular document (or part thereof) is critical to her case, she may preserve an objection to the court’s ruling by saying “exception,” in which case the court stenographer will note the exception; on appeal, the attorney may cite any number of exceptions as adding up to the lack of a fair trial for her client and may request a court of appeals to order a retrial.
For the most part, courts of appeal will not reverse and remand for a new trial unless the trial court judge’s errors are “prejudicial,” or “an abuse of discretion.” In short, neither party is entitled to a perfect trial, but only to a fair trial, one in which the trial judge has made only “harmless errors” and not prejudicial ones.
At the end of the plaintiff’s case, the defendant presents his case, following the same procedure just outlined. The plaintiff is then entitled to present rebuttal witnesses, if necessary, to deny or argue with the evidence the defendant has introduced. The defendant in turn may present “surrebuttal” witnesses.
When all testimony has been introduced, either party may ask the judge for a directed verdict—a verdict decided by the judge without advice from the jury. This motion may be granted if the plaintiff has failed to introduce evidence that is legally sufficient to meet her burden of proof or if the defendant has failed to do the same on issues on which she has the burden of proof. (For example, the plaintiff alleges that the defendant owes him money and introduces a signed promissory note. The defendant cannot show that the note is invalid. The defendant must lose the case unless he can show that the debt has been paid or otherwise discharged.)
The defendant can move for a directed verdict at the close of the plaintiff’s case, but the judge will usually wait to hear the entire case until deciding whether to do so. Directed verdicts are not usually granted, since it is the jury’s job to determine the facts in dispute.
If the judge refuses to grant a directed verdict, each lawyer will then present a closing argument to the jury (or, if there is no jury, to the judge alone). The closing argument is used to tie up the loose ends, as the attorney tries to bring together various seemingly unrelated facts into a story that will make sense to the jury.
After closing arguments, the judge will instruct the jury. The purpose of jury instruction is to explain to the jurors the meaning of the law as it relates to the issues they are considering and to tell the jurors what facts they must determine if they are to give a verdict for one party or the other. Each lawyer will have prepared a set of written instructions that she hopes the judge will give to the jury. These will be tailored to advance her client’s case. Many a verdict has been overturned on appeal because a trial judge has wrongly instructed the jury. The judge will carefully determine which instructions to give and often will use a set of pattern instructions provided by the state bar association or the supreme court of the state. These pattern jury instructions are often safer because they are patterned after language that appellate courts have used previously, and appellate courts are less likely to find reversible error in the instructions.
After all instructions are given, the jury will retire to a private room and discuss the case and the answers requested by the judge for as long as it takes to reach a unanimous verdict. Some minor cases do not require a unanimous verdict. If the jury cannot reach a decision, this is called a hung jury, and the case will have to be retried. When a jury does reach a verdict, it delivers it in court with both parties and their lawyers present. The jury is then discharged, and control over the case returns to the judge. (If there is no jury, the judge will usually announce in a written opinion his findings of fact and how the law applies to those facts. Juries just announce their verdicts and do not state their reasons for reaching them.)
Legal Rights During Trial [132]
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Learning Objectives |
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Search and Seizure
The rights of those accused of a crime are spelled out in four of the ten constitutional amendments that make up the Bill of Rights (Amendments Four, Five, Six, and Eight). For the most part, these amendments have been held to apply to both the federal and the state governments. The Fourth Amendment says in part that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Although there are numerous and tricky exceptions to the general rule, ordinarily the police may not break into a person’s house or confiscate his papers or arrest him unless they have a warrant to do so. This means, for instance, that a policeman cannot simply stop you on a street corner and ask to see what is in your pockets (a power the police enjoy in many other countries), nor can your home be raided without probable cause to believe that you have committed a crime. What if the police do search or seize unreasonably?
The courts have devised a remedy for the use at trial of the fruits of an unlawful search or seizure. Evidence that is unconstitutionally seized is excluded from the trial. This is the so-called exclusionary rule, first made applicable in federal cases in 1914 and brought home to the states in 1961. The exclusionary rule is highly controversial, and there are numerous exceptions to it. But it remains generally true that the prosecutor may not use evidence willfully taken by the police in violation of constitutional rights generally, and most often in the violation of Fourth Amendment rights. (The fruits of a coerced confession are also excluded.)
Double Jeopardy
The Fifth Amendment prohibits the government from prosecuting a person twice for the same offense. The amendment says that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” If a defendant is acquitted, the government may not appeal. If a defendant is convicted and his conviction is upheld on appeal, he may not thereafter be reprosecuted for the same crime.
Self-Incrimination
The Fifth Amendment is also the source of a person’s right against self-incrimination (no person “shall be compelled in any criminal case to be a witness against himself”). The debate over the limits of this right has given rise to an immense literature. In broadest outline, the right against self-incrimination means that the prosecutor may not call a defendant to the witness stand during trial and may not comment to the jury on the defendant’s failure to take the stand. Moreover, a defendant’s confession must be excluded from evidence if it was not voluntarily made (e.g., if the police beat the person into giving a confession). In Miranda v. Arizona , the Supreme Court ruled that no confession is admissible if the police have not first advised a suspect of his constitutional rights, including the right to have a lawyer present to advise him during the questioning. Miranda v. Arizona , 384 US 436 (1966). These so-called Miranda warnings have prompted scores of follow-up cases that have made this branch of jurisprudence especially complex.
Speedy Trial
The Sixth Amendment tells the government that it must try defendants speedily. How long a delay is too long depends on the circumstances in each case. In 1975, Congress enacted the Speedy Trial Act to give priority to criminal cases in federal courts. It requires all criminal prosecutions to go to trial within seventy-five days (though the law lists many permissible reasons for delay).
Cross-Examination
The Sixth Amendment also says that the defendant shall have the right to confront witnesses against him. No testimony is permitted to be shown to the jury unless the person making it is present and subject to cross-examination by the defendant’s counsel.
Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the right to have the assistance of defense counsel. During the eighteenth century and before, the British courts frequently refused to permit defendants to have lawyers in the courtroom during trial. The right to counsel is much broader in this country, as the result of Supreme Court decisions that require the state to pay for a lawyer for indigent defendants in most criminal cases.
Cruel and Unusual Punishment
Punishment under the common law was frequently horrifying. Death was a common punishment for relatively minor crimes. In many places throughout the world, punishments still persist that seem cruel and unusual, such as the practice of stoning someone to death. The guillotine, famously in use during and after the French Revolution, is no longer used, nor are defendants put in stocks for public display and humiliation. In pre-Revolutionary America, an unlucky defendant who found himself convicted could face brutal torture before death.
The Eighth Amendment banned these actions with the words that “cruel and unusual punishments [shall not be] inflicted.” Virtually all such punishments either never were enacted or have been eliminated from the statute books in the United States. Nevertheless, the Eighth Amendment has become a source of controversy, first with the Supreme Court’s ruling in 1976 that the death penalty, as haphazardly applied in the various states, amounted to cruel and unusual punishment. Later Supreme Court opinions have made it easier for states to administer the death penalty. As of 2010, there were 3,300 defendants on death row in the United States. Of course, no corporation is on death row, and no corporation’s charter has ever been revoked by a US state, even though some corporations have repeatedly been indicted and convicted of criminal offenses.
Presumption of Innocence
The most important constitutional right in the US criminal justice system is the presumption of innocence. The Supreme Court has repeatedly cautioned lower courts in the United States that juries must be properly instructed that the defendant is innocent until proven guilty. This is the origin of the “beyond all reasonable doubt” standard of proof and is an instruction given to juries in each criminal case. The Fifth Amendment notes the right of “due process” in federal proceedings, and the Fourteenth Amendment requires that each state provide “due process” to defendants.
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Key Takeaway |
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The US Constitution provides several important protections for criminal defendants, including a prohibition on the use of evidence that has been obtained by unconstitutional means. This would include evidence seized in violation of the Fourth Amendment and confessions obtained in violation of the Fifth Amendment. |
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Discussion Questions |
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Standards of Proof [133]
The standard of proof asks how convinced the trier of fact must be in order to make a finding. Canadian criminal law has three core standards:
- Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;
- a balance of probabilities or Proof on a preponderance of the evidence which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;
- Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law. Once a prima facie case has been established by the evidence of the crown, there is no need to prove innocence. Rather the accused need only raise a doubt in the evidence.
The US has a fourth standard known as "clear and convincing evidence" which is a middle ground between the two standards. When a proposition at issue in a case, such as an element of an offence, must be proven, the standard must be reached using the weight of the totality of evidence presented, not on each individual piece of evidence.
Totality Principle
When weighing evidence against any standard of proof, the general rule of totality will govern. Each piece of evidence or each fact cannot be considered in isolation to establish a fact. They must be considered in the context as a whole. This principle is central to consideration of Circumstantial Evidence .
Standards
The standard of proof for establishing a fact in most cases will be on a balance of probabilities. However, there are “certainly rare occasions when the admission of the evidence may itself have a conclusive effect with respect to guilt” where a standard of proof beyond a reasonable doubt may be required. Those exceptions that have a "conclusive effect" include confessions and hearsay evidence that satisfies the co-conspirators' exception.
Generally, the standard of proof beyond a reasonable doubt will apply to essential elements of the offence, but not to any other facts.
"Some Evidence" and " prima facie Case"
The standard of "some evidence "prima facie case" are unique standards of proof that apply to certain evidentiary tests.
These two standards are obviously lower than that of balance of probabilities.
Balance of Probabilities
The "balance of probabilities" is described as being "more probable than not", "more likely than not", or more technically, the chance of the proposition being true is more than 50%. This standard is known as the civil standard as it exclusively used in civil trial cases.
Generally, where there are factual questions that are preconditions to the admissibility of evidence should be on a standard of balance of probabilities. This standard should only be increased "in those certainly rare occasions when the admission of the evidence may itself have a conclusive effect with respect to guilt".
Admissibility Usually on a BOP
In most circumstances the standard of proof required for the admissibility of evidence is on a balance of probabilities. Only in "rare occasions" where the admission of the evidence is determinative of guilt will the court apply a standard beyond a reasonable doubt. [5]
Sufficiency of Proof
Before any evidence gets to a trier of fact there is often a requirement to discharge an evidential burden for the trier of law (i.e., the judge).
In a preliminary inquiry, the state must show on the whole that the evidence they will present is sufficient to potentially convict the accused. The purpose of this initial evaluation is to avoid frivolous suiting being brought in that has no chance of success.
The standard of proof needed before evidence can be put to the jury is "whether the evidence is sufficient to justify him in withdrawing the case from the jury, and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt."
In a case where some of the evidence is not directly to the issue of the case, the state must satisfy the judge that "the evidence, if believed , could reasonably support an inference of guilt." [2]
Steps in Jury Trial [134]
The Jury
The right to a trial by jury in federal criminal cases is guaranteed by the Sixth Amendment to the Constitution.
Extensive background on juries is available. In addition, most district courts post a jury plan on their websites, which explains how potential jurors are selected from the community, as well as the court’s policy on whether and when to release jurors’ names.
By law, the courts seek to empanel juries that are a “fair cross-section” of the community. This starts with a “jury wheel,” a traditional term that dates to when prospective jurors' names were drawn from a revolving container. Today, the jury wheel is an automated database filled with names randomly selected from a source list or source lists, for use in further random selection of possible jurors for qualification and summoning. The number of names included in a court's jury wheel is proportional to the number of registered voters in each county comprising the district or jury division within the district.
During jury selection, often called voir dire, the judge, the lawyers, or both will question prospective jurors about their backgrounds, and potential biases that may hinder their ability to be impartial. In federal court, often only the judge will question potential jurors; counsel can request that specific questions be asked.
Voir dire is critical to ensuring an impartial jury. Prospective jurors may be struck from the panel in two ways. Lawyers may exercise a “challenge for cause,” claiming the juror cannot be impartial. If the judge agrees, the potential juror is excused. Lawyers also may exercise “peremptory challenges,” allowing them to remove jurors without stating a reason. The number of available peremptory challenges varies by case type, pursuant to statute and the Federal Rules of Criminal Procedure .
During voir dire, a party may object to another party's exercise of a peremptory challenge on grounds that the party tried to exclude a potential juror based on race, ethnicity, or gender. Such objections are known as “Batson challenges,” referring to Batson v. Kentucky , a 1986 Supreme Court decision that ruled such exclusions unconstitutional.
Unless the parties agree otherwise, the jury consists of 12 persons. The court may impanel up to six alternates to replace any jurors who become disqualified or otherwise are unable to perform their duties.
In death penalty and other complex cases, jury selection can take as long as several weeks. In some courts, judges handling a high-profile trial will have hundreds or, in rare instances, even thousands of potential jurors fill out an extensive questionnaire. A manageable number of eligible jurors are then called in each day to be questioned individually.
In death penalty and other complex cases, jury selection can take as long as several weeks.
On the final day of jury selection, the qualified pool of jurors is called in to the courtroom, and both sides exercise their peremptory challenges until the jury is seated. In capital cases, each side is allowed a greater number of peremptory challenges, in accordance with the Federal Rules of Criminal Procedure .
For exceptional cases, a judge may decide there is a need to sequester a jury – that is, keep all jurors in the court’s protection until the trial concludes.
As noted in Jurors , journalists should not contact a juror before a case is concluded. Even where a court permits the release of jurors’ names after the trial, a judge may order that jurors in a specific case remain anonymous.
Juror payment amounts are set by federal statute, and current rates are available at Juror Pay . Jurors also are reimbursed for reasonable transportation expenses and parking fees, and a judge may authorize an additional $10 a day if a proceeding lasts more than 10 days. Federal law does not require an employer to pay jurors during a trial, but the Jury Act forbids any employer from firing, intimidating, or coercing any permanent employee because of his or her federal jury service.
Opening Statements
Defense counsel are not obligated to make an opening statement or present any evidence, since the defendant is presumed innocent.
At the beginning of a criminal trial, lawyers are limited to telling the jury what they believe the evidence will show. Thus, this is an opening statement, not an argument.
Prosecutors go first because they bear the burden of proving beyond a reasonable doubt that the defendant committed the offense(s) he or she has been charged with. Defense counsel are not obligated to make an opening statement or present any evidence, since the defendant is presumed innocent. Defense counsel may choose to make an opening statement at the conclusion of the initial set of prosecution witnesses, as opposed to at the start of trial. Reporters usually want to be present for opening statements. Not only do they hear a road map of the case the lawyers intend to present, but they often can get quotes that are useful to their coverage.
Witnesses
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. Reporters may ask the clerk of court’s office before the trial whether either list will be available to the public.
Prosecution witnesses take the stand first. Each will be asked questions by the prosecutor and can be cross-examined by the defense lawyer. 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 may 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 answer your questions, and often may be advised by counsel not to do so.
Exhibits, Transcripts, and Courtroom Audio
Trial exhibits that are admitted into evidence become part of the public record. Subject to logistical considerations, they usually are available through the clerk of court’s office to inspect and copy. You also can request a copy of an exhibit from the party that introduced it. In some courts this is necessary, because parties retain custody of exhibits even after they have been introduced into evidence.
In high-profile cases, courts may work with the parties to make extra copies of exhibits that the news media can review, or the court may decide to post exhibits on its website. The presiding judge has some discretion in this area, so he or she might deny public access to certain evidence until after the conclusion of the trial.
In high-profile cases, courts may work with the parties to make extra copies of exhibits that the news media can review, or the court may decide to post exhibits on its website.
Transcripts of courtroom proceedings are not produced unless ordered by a party, a member of the public, or the court. However, by statute, every session of the court is recorded in some format.
Written transcripts are produced by a court reporter or transcriber. As noted in the Federal Court Reporting Program webpage, under Judicial Conference policy these transcripts are not available on PACER until 90 days after they are delivered to the clerk’s office.
During this 90-day period, transcripts are available at the clerk’s office for inspection only or may be purchased from the court reporter or transcriber. The maximum per-page fee is set by the Judicial Conference, and each district sets a local rate subject to that maximum. A few courts have special exceptions to set their transcript rates higher.
After the 90-day period, transcripts can be viewed, downloaded, or printed for 10 cents per page on PACER. Additionally, the transcript is available for inspection and copying in the clerk’s office under the same terms and conditions as any other official public document in the case file.
In most bankruptcy cases, and also in some district court cases (especially proceedings involving magistrate judges), the official record is kept through digital audio recordings. When this is the case, under Judicial Conference policy, the presiding judge may choose to make a copy of the recordings available through PACER.
Copies of such digital audio recordings also may be purchased from the clerk’s office. The current rate is available in the miscellaneous fee schedules for district courts and for bankruptcy courts , which are set by the Judicial Conference. Courts may make these recordings available via tape, CD, email, and/or digital download. When a court reporter is employed to create a transcript, there is no public entitlement to the reporter’s personal backup recording.
Motion to Acquit
After the prosecution’s last initial witness, the defense often makes 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 also may be made after the conclusion of testimony by defense witnesses.
These motions are not granted often, but when they are, 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 grants a Rule 29 motion after the jury reaches a guilty verdict, prosecutors can then appeal the judge’s acquittal.
Closing Arguments
Unlike during the opening statement, prosecutors and defense lawyers are permitted to make an argument after the completion of testimony. That is, they may marshal facts in an attempt to prove or disprove the government’s allegations.
The prosecution goes first, followed by the defense and a rebuttal by the prosecution. Because the prosecution has the burden of proof, it gets the final word. Reporters will want to be present for this portion of the trial.
Jury Instructions, Deliberations, and the Verdict
Before deliberations, the judge will give the jury its final instructions, a step that can have enormous impact on the verdict. Both sides may request in writing that specific language be included in the instructions. Once the judge finalizes proposed instructions, both sides review them in advance. Any objections must be submitted on the record before the jury begins deliberation. While jury instructions typically are given in open court and can be tedious to listen to, they spell out the matters the jurors are to consider and those they are not. In complex or high-profile cases, reporters may find it useful to be present.
Jury deliberations are private; nobody other than the jurors may be present during this process. Jurors have two responsibilities: to determine the facts based on the evidence presented during the trial and to apply the relevant law that the judge provides during the jury instructions. During deliberations, the jurors may have questions about the evidence or the instructions. If they do, they give a note to the deputy marshal or the appropriate person designated by the court, who takes it to the judge. The judge then calls the lawyers back into court to discuss what the answers to the note should be, calls the jurors back into the courtroom, and gives them the answer, provided it does not deal with issues outside the scope of the case or require the judge to interpret the facts for the jurors.
Criminal juries must reach a unanimous verdict of guilty “beyond a reasonable doubt” or not guilty. After thorough deliberation, the jury may report to the judge that it is deadlocked and unable to reach a verdict. At this point, the judge may give the jury what is known as the Allen charge. Named after an 1896 U.S. Supreme Court case, the Allen charge urges jurors to reconsider their positions, as well as those of other jurors, and resume their deliberations in an effort to reach a verdict. If they attempt to do so but still report that they are deadlocked, the judge may declare a mistrial.
In most federal courthouses, once a jury has reached a verdict, it is announced as soon as all the lawyers can get to the courtroom. Reporters may have as little as 15 minutes’ warning. Inquire before the trial how members of the media will be notified when a verdict has been reached. Reporters will want to be present for the reading of the verdict.
Post-Verdict Interviews
Any media interviews must be arranged directly with lawyers and their clients. In high-profile cases, some type of media availability is common for prosecutors and defense lawyers, in or near court property, once a trial is completed. Rules regarding cameras are set by the court. You also are free to speak to jurors after the verdict is read. As noted in Jurors , they are not obligated to grant interviews. Similarly, lawyers and their clients are free to determine whether they wish to talk with the media or not.
Non-Capital Sentencing
Whether there is a plea agreement or a trial that ends with a conviction, sentencing is generally scheduled for a later date. The court’s probation office prepares a presentence investigation report on circumstances that may help the judge in determining a sentence. The report is based on conversations with the defendant and his or her family and friends, victims and their families, and others with relevant information. It is always filed under seal and accessible only to the judge, prosecutor, and defense counsel.
Since 1987, sentencing in federal court has been governed by the U.S. Sentencing Guidelines. They are set by the U.S. Sentencing Commission , an independent agency in the judicial branch, created by Congress to make sentencing more consistent and proportionate. In January 2005, the Supreme Court ruled that the guidelines are merely advisory. Judges are urged to consider the guidelines but can depart from the guideline ranges, so long as the sentence is reasonable and does not exceed the maximum term set by statute for a particular crime.
The presentence report makes a recommendation based on how the guidelines rate the seriousness of the offense and on the defendant’s criminal history. The judge is not required to follow the recommendations of the probation office or the parties, but if the judge rejects a sentence agreed to by the defense and prosecution, a defendant may withdraw a guilty plea. During the sentencing hearing, defendants are given a chance to tell the court anything they believe the judge should consider before the sentence is imposed.
Death Penalty Sentencing
When a capital crime may have been committed, federal prosecutors must receive written authorization from the attorney general before they can seek the death penalty. Federal law provides for a two-part, or bifurcated, trial in a death penalty case. If a defendant is found guilty of a crime punishable by death, the same jury that convicted him or her will determine the sentence. During a second phase of the trial, known as the penalty phase, both sides can present witnesses and evidence. The prosecution presents aggravating circumstances to justify the death penalty, while the defense presents mitigating circumstances that support a sentence less than death. The jury has only two choices: execution or life in prison.
Death penalty cases are fairly rare in federal courts. When they do occur, a defendant is given two lawyers, including one who has specific expertise in capital trials, as well other resources to support the defense.


10.12: Chapter Review
10.1 Overview of Muscle Tissues
Muscle is the tissue in animals that allows for active movement of the body or materials within the body. There are three types of muscle tissue: skeletal muscle, cardiac muscle, and smooth muscle. Most of the body’s skeletal muscle produces movement by acting on the skeleton. Cardiac muscle is found in the wall of the heart and pumps blood through the circulatory system.
Smooth muscle is found in the skin, where it is associated with hair follicles; it also is found in the walls of internal organs, blood vessels, and internal passageways, where it assists in moving materials.
10.2 Skeletal Muscle
Skeletal muscles contain connective tissue, blood vessels, and nerves. There are three layers of connective tissue: epimysium, perimysium, and endomysium. Skeletal muscle fibers are organized into groups called fascicles. Blood vessels and nerves enter the connective tissue and branch in the cell. Muscles attach to bones directly or through tendons or aponeuroses. Skeletal muscles maintain posture, stabilize bones and joints, control internal movement, and generate heat.
Skeletal muscle fibers are long, multinucleated cells. The membrane of the cell is the sarcolemma; the cytoplasm of the cell is the sarcoplasm. The sarcoplasmic reticulum (SR) is a form of endoplasmic reticulum. Muscle fibers are composed of myofibrils. The striations are created by the organization of actin and myosin resulting in the banding pattern of myofibrils.
10.3 Muscle Fiber Contraction and Relaxation
A sarcomere is the smallest contractile portion of a muscle. Myofibrils are composed of thick and thin filaments. Thick filaments are composed of the protein myosin; thin filaments are composed of the protein actin. Troponin and tropomyosin are regulatory proteins.
Muscle contraction is described by the sliding filament model of contraction. ACh is the neurotransmitter that binds at the neuromuscular junction (NMJ) to trigger depolarization, and an action potential travels along the sarcolemma to trigger calcium release from SR. The actin sites are exposed after Ca ++ enters the sarcoplasm from its SR storage to activate the troponin-tropomyosin complex so that the tropomyosin shifts away from the sites. The cross-bridging of myosin heads docking into actin-binding sites is followed by the “power stroke”—the sliding of the thin filaments by thick filaments. The power strokes are powered by ATP. Ultimately, the sarcomeres, myofibrils, and muscle fibers shorten to produce movement.
10.4 Nervous System Control of Muscle Tension
The number of cross-bridges formed between actin and myosin determines the amount of tension produced by a muscle. The length of a sarcomere is optimal when the zone of overlap between thin and thick filaments is greatest. Muscles that are stretched or compressed too greatly do not produce maximal amounts of power. A motor unit is formed by a motor neuron and all of the muscle fibers that are innervated by that same motor neuron. A single contraction is called a twitch. A muscle twitch has a latent period, a contraction phase, and a relaxation phase. A graded muscle response allows variation in muscle tension. Summation occurs as successive stimuli are added together to produce a stronger muscle contraction. Tetanus is the fusion of contractions to produce a continuous contraction. Increasing the number of motor neurons involved increases the amount of motor units activated in a muscle, which is called recruitment. Muscle tone is the constant low-level contractions that allow for posture and stability.
10.5 Types of Muscle Fibers
ATP provides the energy for muscle contraction. The three mechanisms for ATP regeneration are creatine phosphate, anaerobic glycolysis, and aerobic metabolism. Creatine phosphate provides about the first 15 seconds of ATP at the beginning of muscle contraction. Anaerobic glycolysis produces small amounts of ATP in the absence of oxygen for a short period. Aerobic metabolism utilizes oxygen to produce much more ATP, allowing a muscle to work for longer periods. Muscle fatigue, which has many contributing factors, occurs when muscle can no longer contract. An oxygen debt is created as a result of muscle use. The three types of muscle fiber are slow oxidative (SO), fast oxidative (FO) and fast glycolytic (FG). SO fibers use aerobic metabolism to produce low power contractions over long periods and are slow to fatigue. FO fibers use aerobic metabolism to produce ATP but produce higher tension contractions than SO fibers. FG fibers use anaerobic metabolism to produce powerful, high-tension contractions but fatigue quickly.
10.6 Exercise and Muscle Performance
Hypertrophy is an increase in muscle mass due to the addition of structural proteins. The opposite of hypertrophy is atrophy, the loss of muscle mass due to the breakdown of structural proteins. Endurance exercise causes an increase in cellular mitochondria, myoglobin, and capillary networks in SO fibers. Endurance athletes have a high level of SO fibers relative to the other fiber types. Resistance exercise causes hypertrophy. Power-producing muscles have a higher number of FG fibers than of slow fibers. Strenuous exercise causes muscle cell damage that requires time to heal. Some athletes use performance-enhancing substances to enhance muscle performance. Muscle atrophy due to age is called sarcopenia and occurs as muscle fibers die and are replaced by connective and adipose tissue.
10.7 Cardiac Muscle Tissue
Cardiac muscle is striated muscle that is present only in the heart. Cardiac muscle fibers have a single nucleus, are branched, and joined to one another by intercalated discs that contain gap junctions for depolarization between cells and desmosomes to hold the fibers together when the heart contracts. Contraction in each cardiac muscle fiber is triggered by Ca ++ ions in a similar manner as skeletal muscle, but here the Ca ++ ions come from SR and through voltage-gated calcium channels in the sarcolemma. Pacemaker cells stimulate the spontaneous contraction of cardiac muscle as a functional unit, called a syncytium.
10.8 Smooth Muscle
Smooth muscle is found throughout the body around various organs and tracts. Smooth muscle cells have a single nucleus, and are spindle-shaped. Smooth muscle cells can undergo hyperplasia, mitotically dividing to produce new cells. The smooth cells are nonstriated, but their sarcoplasm is filled with actin and myosin, along with dense bodies in the sarcolemma to anchor the thin filaments and a network of intermediate filaments involved in pulling the sarcolemma toward the fiber’s middle, shortening it in the process. Ca ++ ions trigger contraction when they are released from SR and enter through opened voltage-gated calcium channels. Smooth muscle contraction is initiated when the Ca ++ binds to intracellular calmodulin, which then activates an enzyme called myosin kinase that phosphorylates myosin heads so they can form the cross-bridges with actin and then pull on the thin filaments. Smooth muscle can be stimulated by pacesetter cells, by the autonomic nervous system, by hormones, spontaneously, or by stretching. The fibers in some smooth muscle have latch-bridges, cross-bridges that cycle slowly without the need for ATP; these muscles can maintain low-level contractions for long periods. Single-unit smooth muscle tissue contains gap junctions to synchronize membrane depolarization and contractions so that the muscle contracts as a single unit. Single-unit smooth muscle in the walls of the viscera, called visceral muscle, has a stress-relaxation response that permits muscle to stretch, contract, and relax as the organ expands. Multiunit smooth muscle cells do not possess gap junctions, and contraction does not spread from one cell to the next.
10.9 Development and Regeneration of Muscle Tissue
Muscle tissue arises from embryonic mesoderm. Somites give rise to myoblasts and fuse to form a myotube. The nucleus of each contributing myoblast remains intact in the mature skeletal muscle cell, resulting in a mature, multinucleate cell. Satellite cells help to repair skeletal muscle cells. Smooth muscle tissue can regenerate from stem cells called pericytes, whereas dead cardiac muscle tissue is replaced by scar tissue. Aging causes muscle mass to decrease and be replaced by noncontractile connective tissue and adipose tissue.