Sam Brotman, JD, LLM, MBA January 18, 2021 14 min read

What Happens When a Tax Crime Goes to Trial?

In a previous article, we discussed how the majority of criminal tax cases will resolve with the defendant taking a plea, but in the rare instance that a case does go to trial, we’ll now discuss the components of the federal criminal trial and what you can expect when you walk into the courtroom on trial day.

What Is the Jury’s Role in a Trial? 

The jury is also known as the fact finders. Their role is to listen to the evidence presented by the Government and the defense, and then make a fair and impartial decision as to whether the Government has proved every element of the charged offense beyond a reasonable doubt. See Generally American Bar Association, How Courts Work, The Role of Juries (2019).

Prior to the trial, the Government and the defendant’s lawyer will have an opportunity to ask the pool of potential jurors questions to determine if they can make a fair and impartial decision in the case. See Fed. R. Evid. 47. 

These questions will be aimed toward discovering the juror’s beliefs and biases and any conditions that would keep them from paying attention and judging fairly. Once the jury is selected, they will be sworn in and prepared to sit for the trial.

What Happens at a Federal Criminal Trial?

The federal criminal trial is a daunting, intimidating, and somewhat mythical practice. A federal trial is much more formal than a state trial, such as those that you may have seen on Law and Order. 

Before the trial begins (this can occur either before or after jury selection), the parties may be given the opportunity to argue for the last-minute exclusion or inclusion of possibly prejudicial evidence or testimony at trial in what is called a motion in limine. Luce v. United States, 469 U.S. 38, 41 n.4 (1984).

Generally, at the trial stage both sides will have an idea of what the other side intends to bring out, and may wish to pre-emptively ensure that this information is not presented to the jury. Once these motions have been resolved, the jury will either be selected and sworn in or called in to begin the trial.

The defendant will sit at one table with their lawyer. It is important that the defendant is present for all of the proceedings on the day of trial, but the Government may not force the defendant to testify (although they will have an opportunity to do so during the defense’s case in chief if they choose). See U.S. Const. amend. V. 

If the defendant has been in custody they will be allowed to change out of their prison uniform into plain clothes for trial day. See Estelle v. Williams, 425 U.S. 501 (1976).  At the other table will be the Government. The prosecutor may try the case alone or may have other prosecutors with them to assist in the trial.

The Government will get to go first. They will have the opportunity to present an opening statement which is their version of the story and what they believe the evidence will show before the jury. Defense counsel will be able to present their opening statement next.  

Throughout the trial, both the Government and the defense counsel will have an opportunity to call witnesses and present evidence to the jury. The Government will put on their entire case first. 

At the close of the Government’s case, the defendant’s lawyer has the opportunity – outside of the presence of the jury – to request that the judge acquit the defendant because no jury could reasonably find the defendant guilty based on the evidence presented by the Government. See Fed. R. Crim. P. 29. 

This is generally only successful in the event that there is a major pitfall in the case where none of the evidence presented could even reasonably support one of the material elements of the case (i.e., Government is unable to identify the defendant).

Then, the defense will have a chance to present their case in chief. However, in a typical case (one where the defendant is not claiming an affirmative defense), the defendant does not have to put on any evidence or prove anything to the jury at all. See In re Winship, 397 U.S. 358, 364 (1970)

If defense counsel wanted to sit at the desk and play tic-tac-toe (hopefully they do not), they can. It is the Government’s burden to prove each and every element of their case beyond and to the exclusion of every reasonable doubt. See id.

“Beyond a reasonable doubt” is the highest standard in the criminal justice system, but “reasonable doubt” does not mean no doubt. Just because something is possible, does not mean that it is reasonable, and the judge will instruct the jury on this fact. 

For example, there is the old snow blower metaphor used by many prosecutors. Say you live in a cold area, where it snows often. It’s winter time and you wake up and your driveway is covered in snow. What happened? You’d probably say it snowed. Now, is it possible that your neighbor came by in the middle of the night with a snow blower and covered your property in fake snow? Yes. Is this reasonable? Depends on your neighbor, but probably not.

The defendant may choose to testify at trial, but he or she is not required to. The Government can’t make the defendant take the stand, and if the defendant does choose to testify, he may at any point assert his Fifth Amendment rights and choose not to answer a question. U.S. Const. amend. V. 

After the defendant presents their case in chief, they may again move for a judgment of acquittal. See Fed. R. Crim. P. 29.

At the close of the trial, the lawyers for both parties will have an opportunity to discuss the evidence presented to the jury and guide them on how this evidence should be interpreted. 

This is called a closing argument, and it is not the law. The jury will be instructed by the judge on the law applicable to the case. Outside the presence of the jury and prior to this instruction by the judge, both sides will have a chance to review and object to the specific statement of the law that will be provided to the jury.

After the judge reads the jury instructions, the jury will leave to a separate room within the courtroom to decide on a verdict. This process is known as jury deliberation. No one can require a juror to discuss what occurred in a jury room. 

During deliberation, the jurors will likely review the evidence, discuss if the evidence meets all of the elements of the crime beyond a reasonable doubt, and determine if the defendant is innocent or guilty. This is called the verdict. 

A jury’s verdict must be unanimous. Fed. R. Crim P. 31(a). If after serious deliberation the jurors can’t come to a unanimous verdict, it will be considered a “hung jury” and, and the case may be tried again in front of a new jury. Fed. R. Crim P. 31(b)(3).

If a jury does come to a unanimous decision, they will present their verdict to the court. Fed. R. Crim P. 31(a). The clerk of court will then read the jury’s verdict out loud. After the verdict is read, either party may “poll the jury” or request each juror to individually state that this is their true verdict and that they were not coerced into making that decision. Fed. R. Crim P. 31(d).  

However, polling the jury rarely results in a different outcome. If the defendant is found not guilty, he will be acquitted and released if he is in custody. If the verdict is guilty, the next phase will be sentencing.

Post-Trial Recovery

Attempting to evade paying the government its taxes goes back as far as taxes were invented. In past civilizations, tax evasion was considered an insult to the ruling power of a government, and very brutal consequences – from debtors prison to torture, disfigurment and even death – were meted out.

If you were audited by the IRS and end up having to go to trial, it will be a stressful time, especially if you are found guilty. Depending on your situation, at the worst you’ll spend some time in jail and have to make restitution. After that, when April 15 comes around, I will advise you to pay your taxes when your taxes are due. 

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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