BLOG BULLETS: Lists of ways of committing an offense in a statute may be lists of either alternative elements, which a jury has to unanimously agree on, or lists of alternative means, which a jury doesn’t have to unanimously agree on. The divisible statutes to which Descamps limits the modified categorical approach are those […]
Read/Write CommentsBLOG BULLETS: Two defense attorneys in LA have recently made McNabb-Mallory/18 U.S.C. § 3501(c) collusion arguments where civil immigration holds or detentions were used to detain defendants during parallel criminal investigations. One judge found an immigration hold placed at the request of one of the criminal investigators made the time count under McNabb-Mallory and […]
Read/Write CommentsBLOG BULLETS: Descamps is intervening authority that raises doubt about a host of prior Ninth Circuit cases under the Miller v. Gammie “clearly irreconcilable” test. The Ninth Circuit has already recognized that Descampsapplies only to “divisible statutes” that actually list alternative elements. The Ninth Circuit has also recognized that the purpose of the modified categorical […]
Read/Write CommentsBLOG BULLETS: The privilege against self-incrimination continues at sentencing even after a guilty plea. The privilege also continues even after sentencing if the defendant pursues an appeal. Your client can assert this privilege even if his real reason is that he doesn’t want to testify against others, so long as his testimony could also […]
Read/Write CommentsBLOG BULLETS: The Fifth Amendment doesn’t allow a person to refuse to produce incriminating statements or documents that already exist. But there is a Fifth Amendment production for the “act of production,” which may additionally incriminate the person by establishing the existence of the documents, establishing possession of the documents, authenticating the documents, or […]
Read/Write CommentsBLOG BULLETS: Think about possible remedies if a witness claims the privilege against self-incrimination as to only some questions. You can strike the witness’s entire testimony if the claim of privilege frustrates cross examination, if the claim of privilege “mutilates the truth,” and/or if the questions the witness wouldn’t answer pertain to matters directly affecting […]
Read/Write CommentsBLOG BULLETS: The Supreme Court has now held – in Descamps v. United States – that the modified categorical approach can be applied only to divisible statutes, i.e., statutes that expressly list alternative ways of committing a crime. Descamps also provides guidance about what documents can be used and how they can be used; […]
Read/Write CommentsBLOG BULLETS: On the good side, the Harris case saying Apprendi doesn’t apply to facts that increase only mandatory minimums is overruled and Apprendi now applies equally to those facts. On the bad side, the Supreme Court held that a person has to expressly invoke the privilege against self-incrimination and mere silence in response […]
Read/Write CommentsBLOG 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 […]
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