BLOG BULLETS: There’s a narrow exception to Miranda called the “public safety” exception recognized in a Supreme Court case called New York v. Quarles. The exception applies when there’s an imminent threat from a weapon and police have to think quickly on the spot. The exception shouldn’t apply where there’s a more general threat and […]

BLOG BULLETS:   A recent Supreme Court case holds that the comparison of state and federal offenses required by the categorical approach isn’t limited to the just the technical “elements.” This opens the door to reconsideration of Ninth Circuit cases holding courts don’t need to compare affirmative defenses. So look into and compare the state […]

BLOG BULLETS:   The Sixth Circuit just created a split in the circuits on the issue of whether the new crack mandatory minimums apply retroactively in sentence reduction proceedings under 18 U.S.C. § 3582(c)(2). The Department of Justice has agreed that the old crack law was unjust, had a disturbing disparate racial impact, and undermined […]

BLOG BULLETS:   Notes of a witness interview may be Jencks material, either as a statement of a witness if they’re a substantially verbatim recording or as a statement of the agent notetaker if he or she testifies about the witness’s statement. Notes may be Brady material, either when they contain something the later report […]

BLOG BULLETS: Don’t forget e-mails and other electronic material in your discovery requests. DOJ has warned agents and prosecutors — and may warn witnesses — about such discovery. Let their loose lips sink their ships. NOW THE BLOG: Some time back, the DOJ memo on “Guidance on the Use, Preservation, and Disclosure of Electronic Communications […]

BLOG BULLETS:   There may be prior, intermediate drafts of reports on a word processing system in addition to the original notes and the final report. Less “polished” drafts may have valuable information that’s taken out of the final draft. Intermediate drafts ought to be discoverable for the same reasons notes are.   NOW THE […]

BLOG BULLETS: Sometimes agent notes can be better than the agent’s report. Rule 16 requires disclosure of “any written record” of a defendant’s oral statements made in response to interrogation. Several cases have held that “any written record” includes not just the agent’s report, but also the agent’s notes. NOW THE BLOG: In my last […]

BLOG BULLETS: Preparation of reports by the government is different than preparation of reports by the defense, because the government has different obligations and interests. Different interests include the initial identification and discovery of crimes and suspects, and different obligations include the Brady disclosure obligation. Those differences make the government’s interests and duties to prepare […]

BLOG BULLETS: You shouldn’t necessarily have investigators automatically prepare reports. It’s not just harmful evidence reports may create; they may create inaccurate evidence as well. Think about deciding whether to have your investigator write a report based on whether you need one in that instance, not because of some standard policy. NOW THE BLOG: Have […]

BLOG BULLETS: The Jencks rule requiring disclosure of witness statements applies to the defense as well as the government. “Early Jencks” provided by the government is different than “early Jencks” provided by the defense, for multiple reasons. Defense attorneys should be very hesitant to provide Jencks material before the government rests. NOW THE BLOG: What […]