BLOG BULLETS: A defendant completely waives the privilege when she takes the stand and is protected only by the limitations of the rules of evidence. A witness, in contrast, can take the stand, choose to answer some questions, and then choose the point beyond which she will not go. Not only that, but a […]
Read/Write CommentsBLOG BULLETS: Even an innocent person can claim the privilege against self-incrimination. The test is whether the answer to the question could provide a mere “link in the chain of evidence” needed to convict. All the person claiming the privilege needs to show is that there are “substantial and real, and not merely trifling or […]
Read/Write CommentsBLOG BULLETS: There are some opinions out there warning about expanding the “public safety” exception to Miranda too far. It’s an exception that should be narrowly construed and requires an objectively reasonable need to protect the police or the public from an immediate danger. The attempt to use the exception in the Boston Marathon […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write CommentsBLOG 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 […]
Read/Write Comments