Alain Leibman writes: It is among the most difficult episodes in a defense counsel’s practice. Whether testifying on a former client’s habeas petition under 28 U.S.C. § 2255 alleging ineffective assistance or on a motion brought by new counsel to withdraw a guilty plea, no defense attorney wants to respond to inquiries from the court or… Continue Reading
Alain Leibman writes: Federal Rule of Evidence 404(b) permits evidence of non-charged crimes, wrongs, or acts to be admitted if probative of a purpose under the Rule, such as motive, intent, or lack of mistake. The Rule is often referred to as a rule of inclusion, rather than exclusion, because it favors the admissibility of such… Continue Reading
The First Circuit recently reminded prosecutors of the pitfalls of starting their cases with an agent-witness who tells the jury what the defendant did and why that makes him guilty.
The Seventh Circuit holds that the CFTC and the DOJ are the same party for purposes of admitting against the government in a criminal trial under FRE 804(b)(1) the deposition testimony of a witness taken before by CFTC.
Second Circuit upholds conviction despite the trial jurors having been allowed by their judge to take home and study the indictment in the case, breaching the protective cocoon of the jury deliberation room.
Joint representation in criminal case foiled when, in a case where the same firm represented both defendants, the attorney for one defendant demonstrated his conflicted position by first insisting on a speedy trial for his client and then failing to oppose a continuance motion by the other defendant, represented by his partner.
A conspiracy conviction does not require that the jury agree on any particular overt act, holds the Second Circuit, joining the Third, Fifth and Seventh Circuits in eschewing any unanimity requirement.
Attacking eyewitness identification testimony after Perry v. New Hampshire
Third Circuit holds that conspiracy’s “rule of consistency” — providing that the acquittal of all but one conspiracy defendant requires the conviction of the final defendant to be set aside, since the acquittals negate the possibility of a conspiratorial agreement — is no longer viable, given the acceptance of inconsistent verdicts generally.
Lengthy trials are often problematic for prosecutors, who fear that jurors will be unable to recall testimony heard earlier in the proceedings, and for defense attorneys, who are concerned that points scored on cross-examination will wash out of the jurors’ collective memories during the long slog through the government’s case. Mid-trial summaries, then, would seem… Continue Reading
Federal Rule of Criminal Procedure 16(b) imposes discovery requirements on the defense which are triggered when the government complies with its own, initial disclosure obligations. Some defense counsel treat the reciprocal obligation as more or less voluntary, betting that they will be spared the district court’s wrath and will avoid the sanction of evidence preclusion… Continue Reading
Typically, cross-examining a cooperator regarding the impact of the Sentencing Guidelines (e.g., its reduction of, say, a five-year exposure on each mail fraud charge in an Information to nothing more than 12-18 months in the aggregate even before a downward reduction) or the intricacies of a 5K1.1 variance motion can be dicey under the best… Continue Reading
Practitioners in this area are wearily familiar with the Zafiro standard for granting severance under FRCP 14: there must be a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from reaching a reliable verdict. The risk of spillover is not enough, because… Continue Reading
The Insanity Defense Reform Act, 18 U.S.C. § 7 generally bars expert testimony to established a diminished capacity defense, if that lessened capacity falls short of demonstrating insanity. However, the Act, as construed by the courts, effects a bar only as to a complete defense predicated on something less than insanity; it does not bar… Continue Reading
A court in the Southern District of New York recently made it easier for a defendant to secure a Rule 17(c) documentary subpoena to a third party, rejecting a more rigorous standard often employed in this circumstance. In United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008), Judge Scheindlin granted a defense motion and issued… Continue Reading
Although not commonly seen in this District, it has always been understood that a defendant’s attorney has the right to delay presentation of his or her opening statement until after the close of the government’s case. Advocates of the trial theory of primacy would argue that such a strategy risks denying the fact-finder an alternative… Continue Reading
Since the vast majority of white-collar offenses are crimes of intent, it is widely thought that a defense based on “advice of counsel” is generally available in defending those cases. However, a district court in the Fifth Circuit which recently explored the defense found it generally not available unless the particular offense charged additionally required… Continue Reading
A corporation which desires to cooperate either with a civil investigative agency, such as the Securities Exchange Commission, or a prosecutive authority, such as the local U.S. Attorney’s Office, is often asked by the government to turn over the results of any internal investigation as a demonstration of its cooperative spirit and as a badge… Continue Reading