May 2017
Under what circumstances should the defense consider a lineup identification contaminated?
Articles in this Issue
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12 Myths About Trying Criminal Cases
Sometimes lawyers do things in the courtroom because that is the way they have always been done, writes defense attorney Daniel Bertolino. Some techniques have a better chance of succeeding in the courtroom, but nothing works all of the time. Bertolino discusses 12 myths of trial work, including the following: closing statements are more important than opening statements, counsel should never ask “why” on cross-examination, there is only one purpose for cross-examination, and counsel should use the closing argument to persuade the jury.
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A Creative Approach for Obtaining Documentary Evidence From Third Parties
The importance of a defense lawyer having access to documents in the early stages of trial preparation is hard to overstate. When documents the defense needs are in the possession of a third party, however, defense counsel faces an unjustified barrier to obtaining the documentary evidence. The authors address the outdated jurisprudence that has created an obstacle for defense counsel and discuss the reform advocated by commentators and judges.
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Affiliate News
Affiliate News for May 2017 Champion.
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Book Review: David Ball on Criminal Defense
David Ball is a well-known trial consultant in the civil field, particularly regarding plaintiff’s personal injury, jury persuasion and damages. David Ball on Damages is considered a “must read” for many plaintiff’s personal injury attorneys. Mr. Ball and attorney Don Keenan are also famous for the Reptile© trial method. Although controversial and not followed by all plaintiffs’ practitioners, those who do follow it swear by it.
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Book Review: Forensic Science Reform - Protecting the Innocent
We know that trying cases frequently requires experts to make connections between phenomena and their meaning that are beyond the grasp of ordinary persons to assist a legal fact finder to understand the significance of evidence in a case. Along with that is a theme — enunciated in the Daubert decision, the National Academies’ 2009 forensic science report, and last year’s President’s Council of Advisors on Science and Technology (PCAST) report — that lawyers and judges often fail to effectively learn and deploy scientific and technical evidence in court. Koen and Bowers’ book joins a groundswell of publications directed at providing a framework for the practitioner to approach, understand, and structure evidence in meaningful ways at trial. This requires learning the limits of forensic science, chronicling the quest for validation of its practices, and (ultimately) objectively assessing its reliability for use in criminal cases. It does so by a practical, case study-based method that identifies cases in which forensics failed, deconstructs the source of the failures, and then explains the underpinnings of the individual forensic discipline involved to avoid failure in the future. The book goes a long way to assist lawyers and judges in understanding common forensic disciplines, how to assess their faults and foibles, and how to incorporate competent use of expert testimony into the courtroom.
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From the President: What the Race to Death in Arkansas Says About the Death Penalty
Arkansas set out to execute eight men in 11 days in April 2017. Barry Pollack gives a brief description of the men and their cases.
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Grassroots Advocacy
This advocacy case study highlights the 2017 discovery reform efforts in Virginia and examines how NACDL can be a resource to help advance state criminal justice reform efforts.
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Informal Opinion: Representing ‘Those People’ Achieves Justice
How can you represent those people? This is a question criminal defense lawyers often hear. All people accused of a crime should be ably represented by counsel. If not, there is no justice.
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NACDL News: Attorney Cristina C. Arguedas Receives 2017 White Collar Criminal Defense Award from NAC
NACDL and Stetson University College of Law presented Cristina C. Arguedas with the 2017 White Collar Criminal Defense Award on March 18 during NACDL’s White Collar Criminal Defense College at Stetson Law in Gulfport, Florida. NACDL and Stetson co-present the award annually to individuals who have made a profound impact on the field of white collar criminal defense advocacy.
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NACDL News: NACDL Issues Groundbreaking Report and Recommendations on Police Body Cameras
On Mar. 15, 2017, NACDL, with support from the Foundation for Criminal Justice (FCJ), released Policing Body Cameras: Policies and Procedures to Safeguard the Rights of the Accused. This report is the product of more than two years of careful research and deliberation. In this report, NACDL endorses the continued and wider use of body cameras as long as they are implemented with NACDL’s policy recommendations. With these protections in place, body cameras have the potential to better document encounters between police officers and civilians while mitigating competing concerns about their potential for misuse or abuse. The report and recommendations represent an important contribution to critical conversations and policymaking taking place throughout the country.
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NACDL News: New Report Guides Defense Attorneys in Challenging Secretive Government Hacking
On Mar. 30, 2017, the American Civil Liberties Union released a report, to which NACDL and the Electronic Frontier Foundation contributed, that identified key legal arguments and strategies for challenging evidence seized by government-installed computer malware. The report, Challenging Government Hacking in Criminal Cases, assesses recent court decisions evaluating the government’s use of the controversial hacking technique and makes recommendations for the most promising avenues to have unconstitutionally obtained evidence suppressed. The report also looks forward, addressing changes to Rule 41 of the Federal Rules of Criminal Procedure that have given the government wide latitude to use hacking in their criminal investigations.
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NACDL News: Urban League Capitol Hill Event Features Discussion of Right to Counsel
NACDL Executive Director Norman L. Reimer (pictured) participates in a panel discussion on March 22, 2017, sponsored by the National Urban League — Washington Bureau, that focused on the anniversary of Gideon v. Wainwright and the right to counsel crisis in the United States. Held in Washington, D.C., the event, titled Fulfilling Gideon’s Legacy: Exploring the Sixth Amendment & America’s Unmet Promise of the Right to Counsel, gave legal and civil rights advocates an opportunity to examine the scope of the problem and offer solutions. Reimer used examples from Indiana, Louisiana, and South Carolina to explain the failure of states to implement the right to counsel.
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NACDL® 2017 Election Procedures
NACDL® 2017 Election Procedures May 2017 Champion.
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Proving Money Laundering Beyond a Reasonable Doubt: The Problem of Commingled Property Under 18 USC
When the government charges a defendant pursuant to 18 U.S.C. § 1957, that individual is accused of knowingly engaging or attempting to engage in a transaction involving more than $10,000 of criminally derived property. Such a defendant is often engaged in a legitimate business and may (or may not) have engaged in isolated instances of criminal conduct. For example, consider charges against a grocery store owner accused of supplementing profits by paying cash for food stamps. As a result, the defendant’s property is “commingled,” i.e., some funds are “clean” and some are “tainted.” When a defendant uses commingled funds in a charged monetary transaction, at what point does the government prove that the transaction involved criminally derived property (tainted funds) of a value greater than $10,000? Some courts presume that tainted money was spent first. Other courts presume that the defendant spent clean funds if the defendant’s account contained sufficient clean funds to cover the transaction. Until the U.S. Supreme Court settles the issue, the authors say practitioners should object and resist any application of the presumption that the defendant spent tainted funds first. Practitioners should advance the position that the government must prove beyond a reasonable doubt that each charged monetary transaction contained more than $10,000 of criminally derived property.
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Sources of Contamination in Lineup Identifications
Eyewitness identification is not infallible. Indeed, in about half of known cases of wrongful conviction, at least one eyewitness mistakenly identified the innocent suspect as the perpetrator. Professor Brian Cutler focuses on events that can contaminate lineup identifications. He discusses two general situations in which the lineup identification might not be compelling inculpatory evidence: (1) when the lineup is not the first time the eyewitness identified the suspect and (2) when the eyewitness is able to guess the suspect’s identity.