BLOG BULLETS: We should think about filing motions for attorney-conducted voir dire in our cases, to give judges some written argument on why it’s appropriate. One reason to offer for attorney-conducted voir dire is the idea that attorney-conducted voir dire combined with the judge’s voir dire is the most effective way to get full disclosure […]
Read/Write CommentsBLOG BULLETS: The government is claiming the right to read attorney-client e-mails over the BOP Corrlinks/Trulincs system, so be careful about using the system. The government claims there is no attorney-client privilege, but the authority it cites can be challenged, and there’s non-privilege arguments that courts should preclude the government from reading the e-mails. The […]
Read/Write CommentsBLOG BULLETS: The government often errs by charging continuing thefts over a period of time as a single theft of the larger amount when it’s really multiple separate thefts of the smaller amounts. Both older case law and more recent case law reaffirming the older case law support challenges to indictments charging a single theft […]
Read/Write CommentsBLOG BULLETS: In the recent case of United States v. Aguilera-Rios, the Ninth Circuit reaffirmed its rejection of the argument that all affirmative defenses have to be considered in comparing statutes under the categorical approach and heldMoncrieffe v. Holder doesn’t require a different result. But Moncrieffe does require consideration of what the court called “definitional […]
Read/Write CommentsBLOG 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 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 […]
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