User:CheshireKatz/Evidence/PPT

Exam Review

FBI - contacted by - ALICE - roommate of - ROXI - wants to kill - VICKI - wife of - GERARD

- ROXI tells ALICE who told FBI: ROXI having an affair w/GERARD, looking for hitman to kill VICKI
- FBI set up sting using undercover COP as "hitman"
10/21/07 - HITMAN spoke with ROXI about "hit," left NY to show VICKI's home in NJ
10/22/07 - GERARD calls 911, OFFICERJOE responds, VICKI lying in blood screams "Knifed in the back! ROXI got me!" and dies
- OFFICERJOE questioned GERARD, who claimed a-c privilege as client ROXI on narc charge, recommends OFFICERJOE investigate her
- OFFICERJOE noted GERARD as on any list of possible suspects for his evasiveness
11/02/07 - ROXI arrested, US DistCt of NJ grand jury charged "crossing state lines to commit murder" & "conspiracy to commit murder"
11/04/07 - GERARD files wrongful death action in US DistCt of NJ based on diversity of citizenship

Question 1: Prosecutor wants Alice to testify that Roxi had 3 affairs with married men the previous year, plotting to kill their wives. DEF objects, Prosecutor responds: Motive, Signature, both

404 Analysis - Evidence from occasions other than at scene of crime.
- Broad rule: Character or Propensity evidence typically not admissible
- Motive - Jealousy
  - Low probative value, but already sufficiently established by relationship with GERARD
- Signature - Wishing a hit on this particular individual
  - No probative value, no prior crime, just heartbroken
- High prejudicial impact - paints ROXI as a promiscuous homicidal serial homewrecker
  - Normally defense is supposed to state grounds for objection
- Rule against, 403 balancing test

Question 2: Prosecutor wants to question ROXI about conviction for impersonating police officer when she called VICKI declaring a TRO filed by her husband ordering her to move out. Initial proffer rejected. 2nd attempt?

By taking the stand, VICKI has opened herself to character questions regarding her truthfulness. The conceit she was convicted for undermine this and because it does carry significant probative value, PROS will succeed in 2nd attempt

Question 3: In the wrongful death action, DEF attorney offers evidence that prior to police arrival GERARD ordered housekeeper to erase tape of VICKI & GERARD having a heated argument in front of guests at cocktail party. PLA objects, DEF responds: "tape goes to damages & destruction shows guilty conscience"

Damages argument is based on loss of consortium/companionship factor in wrongful death action. If divorce was imminent, dramatically reduced.
- Stretched argument, a fight doesn't demonstrate heading to divorce. Low probative value
Guilty conscious argument based on alternative theory of guilt, contending that GERARD, not ROXI, was responsible for VICKI's death and GERARD was attempting to hide the evidence.
- Guilty mind, evidence of coverup can be used as evidence. Also if GERARD takes stand, would undermine his credibility. (Jason Williams Coverup case)

Question 9: In the civil trial, PLA offers a statement made by ROXI during a failed plea bargaining conference, "Sure I hated VICKI, why wouldn't I?" Objection sustained? What about if part of wrongful death negotiations?

Statements made as part of plea bargains are never admissible, unless waived by DEF. Statements made as part of civil proceedings are only permissible in criminal cases and then only if made to Federal agents.
Statement describing probative value for motive vs unfair prejudice.
- High value for motive, low value for prejudice, because this is how she genuinely felt.

Introduction

Evidence Spring Term 2008

Overview of the Rules
Adoption & Amendment
Constitutional Considerations
Military Tribunals

Federal Rules of Evidence

→ Organization

Objections & Rulings [6]
Judicial Notice [1]
Inferences & Presumptions [2]
Relevancy [15]
Privileges [1]
Witnesses [15]
Experts [6]
Hearsay [7, 1 with 24 provisions]
Authentication [3]
Original Document [8]
Misc [3]

Adoption & Amendment

(The Process)

Advisory Committee
Draft Rule
Public Comments & Hearing
Standing Committee (June)
Judicial Conference (September)
Supreme Court (May 1)
Congress (Dec 1)

Proposed R 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver)

(a) Scope of waiver. — In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.
(b) Inadvertent disclosure. — A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings — and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).
(c) Selective waiver. — In a federal or state proceeding, a disclosure of a communication or information covered by the attorney-client privilege or work product protection — when made to a federal public office or agency in the exercise of its regulatory, investigative, or enforcement authority — does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities. The effect of disclosure to a state or local government agency, with respect to non-governmental persons or entities, is governed by applicable state law. Nothing in this rule limits or expands the authority of a government agency to disclose communications or information to other government agencies or as otherwise authorized or required by law.]**
(d) Controlling effect of court orders. — A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.

State Evidence Law

NJRE - a Federal Rules State, but different for:

Conviction or Bad Act to Impeach,
No Residual Hearsay Exception,
Privileges &
Victim & Defendant Evidence in Sex Cases

NY CPLR Art. 45 → 1) Unique Organization, 2) Substantively similar, 3) Larger Common Law component

URE → Deceptive Similarity

[In 1986] the Drafting Committee was charged with bringing the language of the Uniform Rules of Evidence into line with comparable provisions in the Federal Rules of Evidence, where reasonably possible. The underlying theory was, apparently, that a trial practitioner need master only one set of rules to comfortably practice in both federal and state forums … in various States, Districts, and Circuits. However, in practice, this theory does not seem to work as well as expected. In operation, the same words are often construed differently by different courts, even by sister federal circuits and state jurisdictions. Thus, the careful lawyer must continue to research certain rules of evidence on a case-by-case basis.

Why Rules of Evidence, not Code (ie. UCC)? Rules are Not Comprehensive

No Individual Privileges →
- Common Law & Important Substantive Policies still govern: 1) Attorney Client, 2) Spouse, & 3) Clergy
No Rule on Burden of Proof
No Rule on Bias to Impeach

Approaches to Evidence Rules

Options: 1) Pass it back to the judge, 2) Punt, 3) Specific, & 4) What ????

Pass It Back to the Judge (R401-403)

Relevant evidence (RE) → "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
(Only &) All RE is admissible, except as otherwise provided by the US Const., Act of Congress, or these or other rules prescribed by USSC pursuant to statutory authority.
RE may be excluded if Probative Value substantially outweighed by:
1) Danger of Unfair Prejudice, 2) Confusion of the Issues, 3) Misleading the Jury,
4) Considerations of a) Undue Delay, b) Waste of Time, or c) Needless Presentation of Cumulative Evidence.

Punt (Art. 5 - Privileges) [not adopted] but Cf. NJ, NY, URE → R 501

Except as otherwise required by US Constitution or Act of Congress or rules prescribed by USSC pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by common law principles as interpreted by US courts in the light of reason and experience.
However, in civil actions and proceedings, where state law supplies the rule of decision of an element of a claim or defense, privileges determined in accord with state law.

Be Specific, Be VERY Specific (R803(6) - Business Records)

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form,
...of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation,
all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with R902(11), (12), or a statute permitting certification,
unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit

Be Specific, Be SOMEWHAT Specific...Random exceptions (R404(b))

(b) Other crimes, wrongs, or Acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

What is Evidence at Trial?

Information
Relevant → 1) Believed helpful in deciding an issue & 2) Not excluded on policy grounds
Competent → Sufficiently reliable that a reasonable juror could believe it is true
Permissible Content → A) Factual (direct perceptions) OR B) Opinion (based upon Facts or Expertise)

Proving a Murder Charge

Elements of The Offense → 1) Premeditated, 2) Intentional, 3) Unlawful Killing

The Prosecution's Case
- No Eyewitness
- Victim Died from Blunt Force Trauma to Skull
- Motive
  - D is Broke, in Debt, Foreclosure Looms, V kept a lot of money around
  - D was badly treated by the Victim, Insults, Slurs, Harsh Tasks
- Opportunity → D took care of rich old sick victim, V Lived Alone
- Premeditation
  - D Bought a Baseball Bat on the way to work the day V was killed
  - D does not play baseball
  - Do we need the Bat? With Blood on it? With D’s DNA on it?

The Defense's Case
- Reasonable Doubt
- Alibi → D was at my house that night
- Character → D is Peaceful, Law Abiding
- Self-Defense → Passion/Provocation Manslaughter
- Insanity

Enough? 1) Motion for Acquittal, 2) Jury Verdict, & Appeal by Defendant, Not Prosecution [Double Jeopardy]

Principal Areas → Relevancy

Acts on Other Occasions to Prove Conduct on This Occasion R 404(b), 406
Evidence of Character [Disposition] R 404(a), 405
Probative Value v. Prejudice R 401-403
Suppression of Relevant Evidence on Policy Grounds R 407-415
Completeness R 106
Inferences & Presumptions R 301-302
Trial Burdens
- Burden of Producing Evidence
- Burden of Persuasion
- Due Process

Principal Areas → Competency (Witnesses)

Personal Knowledge (R 602)
Authentication (R 901-1008)
Opinion (R 701-706)
Impeachment (R 607)
- Prior Inconsistent Statement (R 613)
- Untruthful Character (R 608-609)
- Bias
- Impairment
- Contradiction
Hearsay (R 801-807)
- Statement by Party
- Res Gestae
- Records
- Dying Declaration
Privilege (R 501)

Effect [if Any] of Mistaken Rulings

Prompt Objection on Proper Grounds (R 103)
Judge as GateKeeper (R 103, 104)
- Voir Dire Hearing
- Discretion of the Trial Judge
- Limiting Instruction (R 105)
Harmless Error (R 103, FCP 61)

Constitutional Issues (Bill of Rights)

5th → No person [accused of an] infamous crime …

shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law;

6th → In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, …

and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense.

14th Amendment → No State shall … deprive any person of life, liberty, or property, without due process of law;

Federal Constitution & the States

5th Amendment → Applied Only to the Federal Government
14th Amendment → Applied Only to the States
The Incorporation Doctrine
- Gitlow v. New York 1925 – 1stA – Free Speech
- Mapp v. Ohio 1961 – 4thA – Search & Seizure
- Gideon v. Wainwright 1963 – 6thA Right to Counsel
- Malloy v. Hogan 1965 – 5thA Self-Incrimination
  - & cf Miranda v. Arizona 1966 & Griffin US 1965
- Pointer v. Texas 1965 – 6thA Rt of Confrontation

The Right of Confrontation (CrawfordUS2004)

Crawford testimony

- Did Kenny do anything to fight back from this assault?

→ (pausing) I know he reached into his pocket .. or somethin' .. I don't know what

- After he was stabbed?

→ He saw Michael coming up. He lifted his hand .. his chest open, he might [have] went to go strike his hand out or something and then (inaudible).

- Okay, you, you gotta speak up

→ Okay, he lifted his hand over his head maybe to strike Michael's hand down or something and then he put his hands in his .. put his right hand in his right pocket ... took a step back ... Michael proceeded to stab him ... then his hands were like .. how do you explain this .. open arms .. with his hands open and he fell down .. and we ran (describing subject holding hands open, palms toward assailant)

- Okay, when he's standing there with his open hands, you're talking about Kenny, correct?

→ Yeah, after, after the fact, yes

- Did you see anything in his hands at that point?

→ (pausing) um um (no)."

The Clincher

Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would be released "depend[ed] on how the investigation continues." App. 81. In response to often leading questions from police detectives, she implicated her husband in Lee's stabbing and at least arguably undermined his self-defense claim.
Sylvia's statement .. is truly inscrutable, since the key timing detail was simply assumed in the leading question she was asked: Did Kenny do anything to fight back from this assault?" Moreover, Sylvia specifically said Lee had nothing in his hands after he was stabbed, while petitioner was not asked about that.

We once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being.
Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. [The 6th] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability

Crawford Limitation

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law
Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
We leave for another day any effort to spell out a comprehensive definition of "testimonial."
This discussion would be taken up again in the 911 Cases [Davis v. Washington] which we discuss in Hearsay
Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

Self-Incrimination (GriffinUS1965)

P: Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
"What kind of a man is it that would want to have sex with a woman that beat up if she was beat up at the time he left?
"He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
"These things he has not seen fit to take the stand and deny or explain.
"And in the whole world, if anybody would know, this defendant would know.
"Essie Mae is dead, she can't tell you her side of the story. The defendant won't.“

Jury Instruction

"As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.“

Holding

comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege.

Dissent

But whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind. Without limiting instructions, the danger exists that the inferences drawn by the jury may be unfairly broad.

NJ Model Jury Instruction: The defendant in this case chose not to be a witness. It is the constitutional right of a defendant to remain silent.

I charge you that you are not to consider for any purpose or in any manner in arriving at your verdict, the fact that the defendant did not testify nor should that fact enter into your deliberations or discussions in any manner or at any time.

The defendant is entitled to have the jury consider all of the evidence and (he/she) is entitled to the presumption of innocence even if (he/she) does not testify as a witness.

Due Process in Criminal Cases

The Right of Confrontation Precludes the Use of Hearsay which is Testimonial in Nature unless there has been an opportunity to Cross-Examine the Declarant
The Privilege Against Self-Incrimination Affords the Defendant the Right to Stay off the Stand at Trial, and to Suppress the Use of Incriminating Information Supplied by Government Compulsion
The Accused is Entitled to the Effective Assistance of Counsel at Every Critical Stage of the Proceedings
The Defendant has the Right to a Trial by Jury in any case where the penalty imposed exceeds Six Months in Jail
The Presumption of Evidence Requires the Prosecution to Prove Each Element of the Offense Beyond a Reasonable Doubt

Justices to Hear Case Testing Rule on Witness By LINDA GREENHOUSE January 12, 2008 NYT
D’s Constitutional right to cross-examine P Ws Unless W is available for cross-examination, P cannot ordinarily introduce any incriminating statements W made before disappearing. But what if D stands accused of W’s murder?

The justices agreed to hear Giles v. California, a CA man convicted of shooting his former girlfriend to death after she complained to police that he had threatened and beaten her. J allowed the police officer to testify about her description, applying an old doctrine called “forfeiture by wrongdoing” It was not necessary to prove that D’s motive was to make W unavailable. See FRE 804(b)(6) (1997) Forfeiture by *Wrongdoing, which requires proof of intent.

Some legal scholars regard the Crawford decision as one of the Supreme Court’s most important criminal law rulings in recent years. The author of the 9-to-0 decision, Justice Antonin Scalia, based it on a literal reading of the language of the Sixth Amendment, which guarantees a defendant’s right “to be confronted with the witnesses against him.”

The decision was such an abrupt change in the law that it raised many questions for the court to resolve. One question was what type of statement counts as “testimonial,” requiring exclusion if the witness is unavailable.

The court offered a partial answer in 2006, ruling that a crime victim’s emergency call to 911 is a cry for help rather than a testimonial statement, and can therefore be admitted, but that statements given to the police at the crime scene amount to testimony and must be excluded.

In his unanimous opinion for the court in the 2006 case, Justice Scalia addressed concerns that victims of domestic violence, who are often afraid to testify in court, might suffer from such a rule. Defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses and victims” would forfeit the protection of the confrontation clause.

Due Process For Enemy Combatants

Military Commission Rules of Evidence (MCRE) 2007

MCRE 304 (Coerced Evidence) → Confessions, admissions, and other statements

(b) Definitions.

(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control.

“Severe mental pain or suffering” → prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death,
Severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, & Fourteenth Amendments to the US Constitution

(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.

Statements obtained before December 30, 2005: the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
Statements obtained on or after December 30, 2005: the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment

MCRE 611

R611(d)(2) In a case involving a person whose identity or name and appearance is
classified, privileged, or otherwise protected from disclosure under any Act of Congress, this Manual, or these Rules, the military judge may, subject to the provisions of MCRE 505-507, allow W to be identified by a pseudonym, and to testify from behind a protective screen (out of the view of the accused and counsel, but within view of the military judge and the members) or from a screened area outside the courtroom, but J may extend that area worldwide.

MCRE 802 Hearsay Rule

Hearsay may be admitted on the same terms as any other form of evidence except as provided by these rules or by any Act of Congress applicable in trials by military commissions.
Discussion: The M.C.A. recognizes that hearsay evidence shall be admitted on the same terms as other evidence because many witnesses in a military commission prosecution are likely to be foreign nationals who are not amenable to process, and other witnesses may be unavailable because of military necessity, incarceration, injury, or death. Because hearsay is admissible on the same terms as other evidence, the proponent still has the burden of demonstrating that the evidence is admissible under MCRE 401 and 403

MCRE 803 → Admissibility of hearsay

R803(b)(1) Hearsay … may be admitted … if the proponent makes known: (A) the intention to offer the evidence; and (B) the particulars of the evidence (including information on the general circumstances under which the evidence was obtained, the name of the declarant, and, where available, the declarant’s address)
(b)(2) Written Notice of the statement and its circumstances 30 days before trial and materials regarding the time, place, and conditions under which the statement was produced. Absent such notice, J shall determine whether the proponent has provided the adverse party with a fair opportunity under the totality of the circumstances. The disclosure of information is subject to limitations applicable to the disclosure of classified information in MCRE 505.
(c) Hearsay evidence otherwise admissible under subsection (b)(1) shall not be admitted if the party opposing the admission of the evidence demonstrates by a preponderance of the evidence that the evidence is unreliable under the totality of the circumstances.

Criminal Proceedings for Terrorism Trials

Farmer: A Terror Threat in the Courts NYT Jan 2008:

Reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens to leave our nation unprotected and to corrupt the foundations of the criminal law itself
Counterterrorism is primarily concerned with Prevention, Criminal Law with Punishment
We have already extended criminal law into new areas: “Material Support,” formerly either held unconstitutional or confined to money or weapons, now it extends to simply providing services to a terrorist organization. Knowledge of that status is not required
Lakhani bragged he could get weapons, but failed. The undercover agent arranged to supply them to Lakhani, who got 47 yrs
Farmer proposes that Preventive Detention [espoused by Nixon] should be revived by statute

A Terror Threat in the Courts JOHN FARMER January 13, 2008 Op-Ed Contributor Newark
JOSE PADILLA case will be hailed by many as a triumph of the use of criminal law as the primary weapon against domestic terrorism. The White House will no doubt reiterate its view that the prosecution of a US upholds “a core American principle of impartial justice for all.” Donna Newman, D’s first lawyer, said trial “shows you can bring forth the evidence and try someone in court.” Jenny Martinez, who represented him before SCt, wrote that the “trial showed that our federal courts are perfectly capable of dealing with terrorism cases.”

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

The answer is no. In order to make the criminal justice system an effective weapon, we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime.

Look, for instance, at the two charges of which Mr. Padilla has been convicted: conspiracy and the provision of material support to a terrorist organization. Before 9/11, the “material support” statute was greeted rather rudely by the courts. Federal judges were divided even as to its constitutionality, with some believing that the statute penalized the freedom to associate, and others believing that the statute’s failure to require that a defendant know that the organization had been designated a terrorist organization was a fatal due process flaw.

After 9/11, the courts have not been so troubled. Originally limited to providing “material support” in the form of money or weapons to groups the federal government has deemed terrorist organizations, the statute’s scope has now been broadened, in the cases of Mr. Padilla and of John Walker Lindh, the so-called American Taliban, so that a defendant is within its ambit by providing only himself as “material support.”

The conspiracy charge of which Mr. Padilla was convicted is also a novel application of the law. The prosecution used the charge for a new purpose: preventive detention. As Prof. Peter S. Margulies of the Roger Williams University law school perceptively told The Times after Mr. Padilla’s conviction, the way the statute is being interpreted “basically allows someone to be found guilty for something that is one step away from a thought crime.”

Both charges — providing material support and conspiracy — are extremely vague, because ideas behind both strain to reach conduct that may be, in other contexts, entirely innocent.

The urgency involved in terrorism cases has also led courts to accept conduct by the government that might well have been disapproved in other contexts. In United States v. Lakhani, the defendant, Hemant Lakhani, bragged to an F.B.I. informant of his ability to procure everything from shoulder-held missiles to submarines. There was only one problem: it became clear over a 22-month period that Mr. Lakhani couldn’t deliver. He was unable to find anyone to sell him the weapons.

So, in exasperation, the government stepped in. A government agent arranged to be the supplier for Mr. Lakhani. The government thus not only induced the defendant to commit the crime, but enabled him to commit it. No matter. Mr. Lakhani was convicted, and sentenced to 47 years in prison by a federal district court in New Jersey.

The broader trouble here is that the federal court decision rejecting Mr. Lakhani’s appeal is considered “precedential” — that is, the court sees it serving as a model. When terrorism cases are treated as ordinary criminal prosecutions, the principles of law that they come to embody will guide law-enforcement conduct and be cited by the government not just in terrorism cases but in other criminal contexts.

Over time, we may well transform the law of conspiracy to the point where an agreement alone is a crime. This would render thoughts punishable, reward government overreaching and erode our civil liberties. All because the criminal law is being used not primarily to punish crimes but for purposes of detaining people we are worried about.

I don’t question that people like Jose Padilla and Hemant Lakhani can pose an unacceptable risk to public safety. But their prosecutions should transform the debate over how to deal with domestic terrorism. They cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.

Likewise, the government’s detention of Mr. Padilla for years without filing charges or providing access to counsel was unprincipled. But considering norms of criminal law and the paucity of evidence the government had at the time, its only alternative was to leave him free. Law enforcement should have had another choice.

Imagine what might have happened had the government not detained Mr. Padilla back in 2002 — if he had carried out a large-scale bombing, killing thousands, and if it had emerged later that the government had had information implicating him and done nothing. Would that have been a risk worth taking? Scotland Yard took that risk when it put surveillance on, but failed to detain, the future London subway bombers.

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

- John Farmer, a former attorney general of New Jersey and senior counsel to the 9/11 commission, teaches at Rutgers Law School.

Trial Procedure

Pre-Trial Conference - Criminal

D NJ Standing Order

- Mandatory Conference

Prosecutor Must Provide

1) All Trial Exhibits (Def Must Give Notice if Challenging A) Authenticity, B) Scientific Analysis, or C) Chain of Custody)

2) All Statements by DEF & CO-DEFs, 3) Test Reports & Results, 4) Any DEF Docs or Prop, 5) DEF’s Crim Record, & 6) Exculp Material [Brady]

Motion in limine – Civil

Earth First! Case (OaklandPoliceDCA2001)

The Test: “Guesswork” “a Brute Force Technique” “No Physics Involved”
The Motion
Expert Testimony R 702 – Daubert: Judge as Gatekeeper
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case

Issue: Was the Bomb in Plain View Behind the Seat or Hidden Under It?
The Result - Blew Up 4 Subarus. The jury award was $4.4 Million

Renewal of Objection at Trial

R103(a) [as amended 2000]: Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Tennison 9th2001 Case (Hostile Work Environment - Not Respondeat Superior)

The Evidence → 1) Mejia’s Conduct, 2) Complaints to Management, 3) Time Frame
Motion in limine → Plaintiff’s Testimony - Pre-1994 Acts/Complaints
"The granting of this motion will not preclude plaintiffs from renewing their request to introduce some or all of this evidence outside the presence of the jury." (tentative language)
Shortly before trial, the judge stated that, if the Defendants "opened the door," he would allow Plaintiffs to use the evidence of earlier harassment in cross-examination or rebuttal.
On the 1st & 2nd days of trial, the court reiterated this sentiment.
In fact, in a pretrial motion, Plaintiffs themselves expressly acknowledged that, "This court has not unconditionally excluded evidence of events prior to August 20, 1994 of Mejia's sexual harassment." They continued, "What the Court has done is direct the parties to offer the evidence at trial, where an admissibility determination will be made at that time."
- Burden to renew fell on PLAs who dropped the ball.

Discovery Materials as Evidence

Depositions

Fact Witnesses FRCP 32
- Contradict or Impeach Deponent at Trial
- Adverse Party or Officer
- >100 miles from Trial [or sick/dead]
- Subpoena did not work
Experts FRCP 26(b)(4)(A) <$$>

Party Statements

FRE 801(d)(2)
FRCP 36 – Formal Admission

Records

FRE 803(6)
FRE 803(8): Government Records

Jury Selection

Jury Pool
Voir Dire of Prospective Jurors
- Judge Questions
- Lawyer Follow Up
Challenges for Cause
First Jury Pick
Peremptory Challenges
Replacement of Jurors

NJ Jury Selection Standards 2006

The purpose of jury selection is to obtain a jury that

can decide the case without bias against any of the parties
will evaluate the evidence with an open mind
and will apply the law as instructed by the judge

Voir dire practices must

Elicit meaningful information from prospective jurors
The process should be designed to provide the attorneys and judge with sufficient information to appropriately excuse jurors for cause
The process should also provide the attorneys with sufficient information to intelligently exercise peremptory challenges

Voir Dire

In Fed (& NJ) Court, Judge asks Qs, incl. submitted by attorneys
Reluctant to let lawyers ask follow up/individual Qs to jurors
In NY, Judge not present, lawyers can ask about almost anything (aside from actual evidence in case)
Capital Cases are Unique in nature & extent of questions (Miller El US 2005 [1985])
The Death Script for white panel members:
it is fair that we tell you our position in this case. The State is actively seeking the death penalty. We anticipate we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder.

The Death Script for black panel members:
We are actively seeking the death penalty with the anticipation that Mr. Miller-El --the man sitting right down there -- will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case.
The Texas Shuffle
- The first clue to P‘s intentions … is the resort during voir dire to a procedure known in Texas as the jury shuffle.
- Either side may literally reshuffle the cards bearing panel members' names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.
- Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed.

Pretrial Publicity (Vest1st1988)

Judge Has Broad Discretion on Voir Dire Procedure
Pre-Trial Publicity (15 minutes of fame)
- Hybrid - Collective: Have you heard anything
- If Yes, Individual Q&A at sidebar, Lawyers can participate
- Only 4 of 31 prospective jurors stated that they had some knowledge of the case
- When questioned further, these four jurors all said that they would not be biased by their prior knowledge, and none of the four were challenged for cause
- Vest had made front page of Boston Globe 3x, but last front page story was 6 weeks before trial began.
- None of the four jurors who remembered the case and were individually questioned displayed more than a hazy recollection of the facts.
- Not one of the jurors mentioned any awareness of the one item of publicity that was seriously prejudicial: the inculpatory tape recording of the events surrounding Waters's handing of the $35,000 payment to Vest.
- Awareness of the existence of such a tape, which was excluded from evidence at trial, might have led a juror to think Vest guilty on the strength of evidence not presented at trial.

Challenge for Cause (PapasavvassNJ2000)

Single Capital Trial
Voir Dire
- Death Eligible Description
- Would juror automatically impose death
Challenge for Cause
- Juror Would Automatically Impose Death
- Bias Against Psychiatric Evidence
  - Q: Could you see yourself considering that physical injury as mitigating against the death penalty, and leading you, perhaps, to impose life in prison?
  - A: But if this is something he just got, just got prior to committing this crime, then it is a little bit different. If this is something he knew he had, or his family knew he had, then they should have been taking care of that
- An improper denial of a challenge for cause does not always require a new trial
  - Whether the jurors were eventually removed from the jury
  - The stage at which they were removed
  - The effect on counsel's strategy
  - Any apparent unfairness to the defendant
  - Whether additional peremptory challenges were required.
- The loss of two peremptory challenges to excuse the jurors did not produce an unfair trial
- Information Obtained by Juror During Trial
  - Court must ascertain if juror can disregard & be fair
Prosecutor’s Challenge for Cause upheld:
- Q: What would you say is your general feeling about the death penalty? A: Probably be against it if I had to absolutely choose.
- Q: Okay. Let us assume for a second that you won't absolutely have to choose but that it is an option that you have. If you are presented with the proper evidence could you choose that option? A: Probably not, no.
- Asked if he would sentence one such as the Oklahoma City bomber to death, Roberti said he would "probably not" impose the death sentence.
- Q: Why not? I want reasons. What are your reasons for not imposing the death sentence in that case? A: Because, like I said, I don't know if anyone can really say just because you did this, he did all that, that you could kill him for it.
- There followed an exchange during which Roberti explained that he was not likely to sentence to death one such as Jeffrey Dahmer, who had cannibalized his youthful victims

Peremptory Challenges

28USC1870 NJR 1: 8 PapasavvassNJ2000

# of Challenges: Fed → 3 Civil, 6 Pros/10 Def Crim; NJ → 6 Civil, 20 Crim
Order of Exercise
- NJ: Pl or Prosecutor goes first, then alternate
- Despite the importance of the matter, it has been left to the discretion of courts with little guidance and without uniformity.
- NJ has held that the order of exercise of peremptory challenges is not a constitutional issue but the existing practice deserves more careful study
- The Biggest Issue: If you pass, are you done with Peremptories?
  - NJ: Pass not a waiver until all pass
“Visibility” of Exercise
Use to Exclude Minority Group – Discrimination
- Batson v. Kentucky, 476 US 79 (1986), established the rule that discrimination by the prosecutor in selecting the defendant's jury sufficed to establish the constitutional violation
- Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct and it can sometimes be hard to say what the reason is.
- But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.
- A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

Preliminary Instructions (9thCModelInstructions)

Jurors Sole Deciders of Facts
Brief Outline of Claims & Defenses
What is Not Evidence
- Argument & Objection by Attorney
- Things I tell you to disregard
  Limiting Instructions
- Anything Outside of Court
Credibility Factors of Witnesses
- Perception, Recollection
- Bias
- Consistency/Contradiction
No Outside Information
No Pre-Judgment
Note Taking
Questions to Witnesses

Opening Statements

Right to Open, Even in Non Jury Case
Parties & Major Witnesses
Claims & Defenses
Outline of Evidence → No Further Chance Until Closing, Experts, Parties
Objections in Opening → Relevancy
Motion to Dismiss on Opening

Order of Witnesses

R611(a) Mode and Order of Interrogation and Presentation
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to
- (1) make the interrogation and presentation effective for the ascertainment of the truth
- (2) avoid needless consumption of time
- (3) protect witnesses from harassment or undue embarrassment.

Exclusion of Witnesses

R615 Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
This rule does not authorize exclusion of
- (1) a party who is a natural person
- (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney
- (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause
- (4) a person authorized by statute to be present