A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter One: Pre-Trial Considerations

1.7     Delegation Of District Court’s Responsibilities To Magistrate Judges
          A. Criminal Proceedings
          B. Civil Proceedings    

2. Guilty Pleas. A magistrate judge may preside over a Rule 11 felony change of plea with the consent of the defendant because "plea colloquies 'bear some relation to the specified duties' that are specifically authorized" by 28 USC 636(b)(3) (Magistrate Judges Act). Reyna-Tapia, 328 F.3d at 1120-21. De novo review of the findings and recommendations of the magistrate judge following a plea colloquy is required only where a party files objections to the findings and recommendations. Id at 1121.

a. Voir dire. A magistrate judge may conduct voir dire in felony cases but only with the parties' consent. Peretz v. United States, 501 U.S. 923 (1991); Gomez v. United States, 490 U.S. 858 (1989).

b. Presiding over closing argument. A magistrate judge may not preside over closing arguments in a felony criminal trial. United States v. Boswell, 565 F.2d 1338, 1341 (5th Cir. 1978) (harmless error on facts presented where trial judge was ill; court did not decide whether personal, intelligent waiver was required; Rule 25(a), Federal Rules of Criminal Procedure, which states that when a trial judge is unable to proceed with trial, any judge regularly sitting in or assigned to the court may complete a jury trial after the judge certifies familiarity with the trial record, does not authorize magistrate judges to preside over closing arguments).

c. Instructing jury on law. Absent consent, a magistrate judge may not rule upon objections to and requests for instructions. United States v. De La Torre, 605 F.2d 154, 155-56 (5th Cir. 1979) (absent waiver by counsel, defendant entitled to have Article III judge rule on counsel's objections and requests for instructions to the jury). The Sixth Circuit has stated that a magistrate judge's mere reading of instructions to the jury is permissible. Allen v. United States, 921 F.2d 78, 79-80 (6th Cir. 1990) (reading instructions to jury is a mere ministerial function).

d. Presiding over jury deliberations.

Magistrate judges have been allowed to do the following:

(1) Readbacks. Once a district judge has determined that there should be a readback and the scope of the readback, a magistrate judge may preside over the readback of trial testimony because a readback is a subsidiary matter. United States v. Gomez-Lepe, 207 F.3d 623, 629 (9th Cir. 2000). See also United States v. Demarrias, 876 F.2d 674, 677 (8th Cir. 1989).

(2) Directive to continue deliberations. Under the

supervision of a trial judge, a magistrate judge's directive to a jury to continue deliberations has been held to be permissible. United States v. Saunders, 641 F.2d 659, 662-64 (9th Cir. 1980), cert denied, 452 U.S. 918 (1981).

(3) Answering jury's question. The Ninth Circuit has not ruled upon whether a magistrate judge may answer a jury's question. United States v. Foster, 57 F.3d 727, 732 (9th Cir. 1995), vacated in part on other grounds, 133 F.3d 704 (9th Cir. 1998) (en banc). However, the Ninth Circuit has cited with approval an Eighth Circuit holding that a magistrate judge "may accept the jury's questions, communicate them to the absent district judge, and communicate the district judge's responses to the jury." United States v. Carr, 18 F.3d 738, 740 (9th Cir.) (citing Demarrias, 876 F.2d at 677), cert. denied, 513 U.S. 821 (1994).

e. Accepting jury's verdict. Accepting and filing a jury verdict without more is a ministerial subsidiary matter that does not require the consent of the parties. United States v. Foster, 59 F.3d 72, 732 (9th Cir. 1995), vacated in part on other grounds, 133 F.3d 704 (9th Cir. 1998) (en banc). However, "a jury poll that calls into question the jury's unanimity is . . . a critical stage of a criminal proceeding" and therefore requires the defendant's consent. United States v. Gomez-Lepe, 207 F.3d 623, 629-30 (9th Cir. 2000).

4. Misdemeanor Trials. A magistrate judge may preside over a class A misdemeanor trial only upon a defendant's express consent. 18 USC 3401(b); Peretz v. United States, 501 U.S. 923 (1991) (consent required); N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994). Section 203 of the Federal Courts Improvement Act of 2000, Pub. L. No. 106-518, 114 Stat. 2410 (2000), amended 28 USC 636(a) and 18 USC 3401(b) and (g) to eliminate the requirement that a defendant consent to the authority of a magistrate judge in class B misdemeanor cases that do not involve a motor vehicle offense. Previously, the consent of the defendant was not required in class B misdemeanor cases charging a motor vehicle offense, class C misdemeanor cases, and infractions. The consent of the defendant was required in all other class B misdemeanor cases. Under the new law, consent is not required in petty offense cases, i.e., class B misdemeanors, class C misdemeanors, and infractions) although consent is still required, either in writing or orally on the record, in class A misdemeanors.

5. Evidentiary Hearing in Revocation of Probation Proceedings and Revocation of Supervised Release Proceedings. A magistrate judge may only conduct revocation of probation proceedings in a misdemeanor case if the following three conditions are met: "(1) defendant's probation was imposed for a misdemeanor; (2) the defendant consented to trial, judgment, and sentencing by a magistrate judge; and (3) the defendant initially was sentenced by a magistrate judge." United States v. Colacurcio, 84 F.3d 326, 329 (9th Cir. 1996). However, a magistrate judge may conduct revocation of supervised release proceedings only with consent and by report and recommendation to the district judge to be reviewed de novo by the district judge. 18 USC 3401(i); Id. at 330 (9th Cir. 1996).

B.  Delegation of District Court's Responsibilities to Magistrate Judges: Civil Proceedings

1. Voir Dire. A magistrate judge may preside over voir dire in a civil case only with the consent of the parties. Thomas v. Whitworth, 136 F.3d 756, 759 (11th Cir. 1998); Stockler v. Garratt, 974 F.2d 730, 732 (6th Cir. 1992); Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369 (7th Cir. 1990).

2. Trial. A magistrate judge may conduct a civil trial only with the consent of the parties. Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 543 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). See generally Inventory of United States Magistrate Judge Duties, Administrative Office of the United States Courts.