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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Category Archives: Trial tactics

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Attorney-Client Privilege Precludes Counsel, Following Discharge By Client, From Testifying To Defendant’s Understanding Of And Agreement To Plea Terms

Posted in Evidence, Trial tactics

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

Third Circuit Constricts Rule 404(b) Admissibility By Requiring That Evidence Not Only Be Offered For A Permissible Purpose, But That It Not Give Rise To A Propensity Inference

Posted in Evidence, Trial tactics

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

Third Circuit Reminds That In Criminal Cases A Joint Representation Conflict Of Interest Is Not Avoided Simply Because The Clients Consent And Waive Any Conflict

Posted in Trial tactics

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.

Third Circuit Abandons “Rule of Consistency” In Conspiracy Cases, Upholds Conviction Of One Conspirator Even Though His Only Co-Conspirator Was Acquitted

Posted in Trial tactics

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.

Mid-Trial Summations Endorsed By Seventh Circuit

Posted in Trial tactics

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

Critical defense exhibits excluded for failure to comply with Rule 16(b) reciprocal discovery obligations

Posted in Discovery, Trial tactics

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

Trial court may cut off cooperator cross-examination on need for “truthfulness”

Posted in Trial tactics

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

Expert testimony to negate mens rea still admissible despite Insanity Defense Reform Act

Posted in Trial tactics

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

District Judge eases defendant’s burden in obtaining a Rule 17(c) subpoena to a third party

Posted in Trial tactics

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

Trial Court Endorses Delayed Defense Opening

Posted in Trial tactics

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

Advice of counsel defense limited to “complex” crimes?

Posted in Trial tactics

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

Selective Waiver Exception to Work Product Protection

Posted in Trial tactics

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