BLOG BULLETS: The Ninth Circuit hasn’t yet decided whether to follow theCrowder majority opinion discussed in last week’s post, so you can argue it should follow the dissent in Crowder. The Second Circuit still takes the position that an offer to stipulate to the element or fact on which Rule 404(b) evidence is offered creates […]
Read/Write CommentsBLOG BULLETS: While older Ninth Circuit case law held an offer to stipulate to a fact precluded the government from introducing Rule 404(b) evidence on the fact, later case law held that a stipulation can never prevent the government from introducing Rule 404(b) evidence to prove an element of the offense. The Supreme Court’s later […]
Read/Write CommentsBLOG BULLETS: Prosecutors often offer evidence with damaging hearsay content on a theory that it’s not offered for the truth but just to show why the agent did what he did. The evidence shouldn’t be admitted for this purpose because why the agent did what he did generally isn’t relevant. You can rely on two […]
Read/Write CommentsBLOG BULLETS: With limited exceptions, a prior inconsistent statement is admissible only for impeachment, which means only to cancel out the adverse answer being impeached. It follows from this that a party can’t impeach a witness with a prior inconsistent statement if he knew the witness would give the adverse answer and the primary reason […]
Read/Write CommentsBLOG BULLETS: Rule 801(d)(2) of the Federal Rules of Evidence on admissions of a party-opponent can be used to introduce statements by government prosecutors and agents. Other limiting rules of evidence, like rules limiting opinion evidence and the rule excluding hearsay, don’t apply, so statements made by prosecutors in closing argument and statements made by […]
Read/Write CommentsA man who said he was beaten by Los Angeles County sheriff’s deputies while visiting his brother at Men’s Central Jail will be paid almost $1.2 million to settle his civil rights lawsuit. Attorneys for Gabriel Carrillo, 26, announced the settlement Thursday. It was approved by the Los Angeles County Board of Supervisors and finalized […]
Read/Write CommentsBLOG BULLETS: Less than half of sentences are now within the guidelines, with the vast majority of other sentences being below the guidelines. The percentage of sentences within the guidelines in the Ninth Circuit is even lower. Career offenders are being sentenced within the guideline range even less frequently, with only 30.2% being sentenced within […]
Read/Write CommentsBLOG BULLETS: The California statutes governing sale of drugs are overbroad for purposes of the categorical approach because they include transportation for personal use in addition to sale. The transportation/sale element isn’t divisible underDescamps because a jury doesn’t have to unanimously agree on whether the defendant sold or transported. So the modified categorical approach can’t […]
Read/Write CommentsBLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]
Read/Write CommentsBLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]
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