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 […]

BLOG BULLETS: A court of appeals opinion finding no abuse of discretion doesn’t mean the ruling being reviewed was the only permissible ruling, or even that it was the best ruling, so the opinion doesn’t mean a district court can’t or shouldn’t rule the other way in your case. Because discretionary rulings favoring the government […]

BLOG BULLETS:   A quick look and perusal of a computer at the border requires no suspicion, but an intensive forensic examination requires reasonable suspicion. The Ninth Circuit recognizes in its en banc Cottermanopinion that computer searches are different in kind, both because of the quantity of information a computer holds and the type of […]

BLOG BULLETS: Court of appeals eyewitness identification expert opinions upholding the exclusion of such testimony merely allowexclusion; they don’t require it. Recent cases suggest the wiser course and trend is to allow such testimony, and a few have even reversed convictions on this ground. But it’s important to make a case-specific record about why the […]

BLOG BULLETS: The Supreme Court just reaffirmed the double jeopardy bar to government appeals of a midtrial judgment of acquittal. The bar exists even if everyone agrees the bar was based on an erroneous legal interpretation. The Court also agrees you couldn’t raise legal challenges to the sufficiency of evidence pretrial even if you wanted […]

BLOG BULLETS: Federal evidentiary rules place additional limits on use of a defendant’s silence, because, in the words of the Supreme Court, it’s “inherently ambiguous.” There’s a multitude of reasons an arrestee – or even a non-arrestee – may remain silent when confronted by law enforcement officers. Think about such possible reasons in your case, […]

BLOG BULLETS: Post-Miranda silence can’t be used to impeach a defendant who testifies at trial. But pre-Miranda silence, whether before or after arrest, can be used to impeach a defendant who testifies at trial. Presently pending in the Supreme Court is the question of whether pre-Miranda, pre-arrest silence can be used against a defendant even […]

Today, we have another guest post from Dan Broderick, who did a couple of guest posts for us back in October. Dan was then the Federal Public Defender in Sacramento, but he retired at the end of last month, so he’s now lazing around at home. Whether he’ll be contributing any more of his legal […]