Tuesday, April 19, 2016

Door Opening

by Jill Paperno,

“Knock, knock.”
“Who’s there?”
           As defense attorneys we often face (and dread) the claim that we have somehow “opened the door” to previously excluded evidence during a hearing or trial. 

           Sometimes we recognize we did it inadvertently as testimony begins in response to a question.  Sometimes the hungry grin of opposing counsel tips us off.  Sometimes we are blindsided by a claim that we opened a door that we believed had remained firmly locked.  As we elicit testimony at trial, and have so many considerations, there are times we do forget certain possible ramifications of testimony.  But our error may harm our clients, so if this does happen, it is important to be aware of the law that limits the harm of the opened door (at least to some extent). 

           Generally, the concept is that we have introduced testimony or evidence that creates some type of inaccurate impression or misrepresentation that can only be cured by admitting the formerly excluded evidence.  But opening the door does not mean that every piece of negative information against your client or case automatically comes in.  Instead, there must be an analysis.  

           In People v. Melendez, 55 NY2d 445, the Court of Appeals addressed the issue of opened doors in a murder case.  The Court noted:

The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court. (cites omitted).  Where, however, the opposing party "opens the door" on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect "to explain, clarify and fully elicit [the] question only partially examined" on cross-examination. ( cites omitted).   
The "opening the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances. ( cites omitted).  Similarly, where cross-examination raises the inference that the witness' testimony was the product of a recent fabrication, a party on redirect can refute this allegation either by introducing consistent statements made by the witness at a time when there was no motive to lie or by having the witness explain why the information was not disclosed earlier. (Cites omitted.) In addition, in situations where only a part of a statement has been brought out on cross-examination,   the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement. (Cites omitted.)   

The "opening the door" theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the "subject-matter of the cross-examination [which] [bears] upon the question at issue." (Cites omitted.)   Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to "meet what has been brought out in the meantime upon the cross-examination." (Emphasis added, cites omitted.)  The "opening the door" theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally "exclude all evidence which has not been made necessary by the opponent's case in reply." (6 Wigmore, § 1873, p 672 [emphasis in original].) 

           Importantly, the Melendez Court recognized that before a Court admits evidence in response to a claim that a door was opened, the Court must engage in an analysis. The trial court must limit the questioning by opposing counsel to “the subject matter of  (in that case) the cross-examination” relating to the question at issue.  And the Court must limit the additional evidence to only what is necessary to respond to the testimony that was deemed to have opened the door.  Furthermore, the theory does not independently make inadmissible evidence admissible.

           In People v. Massie, the Court again considered the “open the door” concept.   The Court concluded the trial court had not erred in permitting evidence relating to identification to be admitted once the defense offered

           The Court noted that the “open the door” concept applied to areas beyond cross-examination, stating, “While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v Rojas, 97 N.Y.2d 32, (2001), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression. (Emphasis added.)

People v. Massie, 2 N.Y.3d 179, 184 (N.Y. 2004).

           In 2012 the Court of Appeals considered whether evidence that violated a defendant’s right of confrontation could be admitted at trial if the defense opened the door, concluding that it could.  The Court stated,

As the People concede, the admission of the testimony that a nontestifying eyewitness told the police who had been present at the murder violated the Confrontation Clause, unless the door was opened to that testimony by the defense counsel's questioning of witnesses. The question then becomes whether a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. Several United States Courts of Appeals have held that  "a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause" (cites omitted).  We agree with this consensus.

If evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, then a defendant could attempt to delude a jury "by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context"(cite omitted). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts (cite omitted), we hold that the admission of testimony that violates the Confrontation Clause may be proper if the defendant opened the door to its admission.

Often, defense counsel face the claim that if we deny allegations in a case, such allegations are claims of “recent fabrication” and the defense has opened the door to prior consistent statements.  It is important to read the evidentiary foundation for introduction of such evidence, but to also be aware that not every defense that a complainant has made false claims is a claim of recent fabrication.  In People v. Rosario, 17 NY3d 501, the Court of Appeals addressed this issue in the context of a sex offense trial:

The People single out defense counsel's use of the word "story," claiming that she suggested a recent fabrication by "discuss[ing] in detail the events of [June 24, 2005] and . . . telling the jury that the 'story' began after the police found [complainant] that day." Fabrication may have been an obvious (indeed, the only) defense here, as is often the case where a claim of sexual abuse is contested. But we cannot say that any remarks made by defense counsel in her opening statement created a misleading impression that opened the door for the People to elicit evidence of the note in their direct case (see Massie, 2 NY3d at 184 ["(A) trial  court should decide ‘door opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression"])

People v Rosario, 17 N.Y.3d 501, 514  (N.Y. 2011).

           In a decision that should concern defense counsel, People v. Blair, 94 AD3d 1403, the Fourth Department affirmed defendant’s conviction, finding that the redirect examination of a witness was proper because the defense only partially explored an issue on cross-examination.

Defendant further contends that the court abused its discretion in overruling defense counsel's objection concerning the scope of the redirect examination of a witness by the People. That contention lacks merit, inasmuch as defendant opened the door to the redirect examination by only partially exploring on cross-examination the issue whether the witness and defendant had engaged in criminal activity together in the past, rendering further examination and clarification on that issue appropriate

People v Blair, 94 A.D.3d 1403, 1404, (4th Dep't 2012).

           Of course, it is best to try to anticipate what evidence or line of questions might be considered “door opening”, but if we slip, we must make sure to require the court to adhere to the evidentiary rules – generally, analyzing whether the door-opening evidence was misleading and to what extent, adhering to the rule that legally inadmissible evidence doesn’t necessarily become admissible (but see Reid), ensuring that the evidence should be only what is necessary to respond to the opening of the door, and exercising discretion, which I believe requires a test of probative value versus prejudicial effect.  If the Court fails to do this, I would suggest that you consider making a mistrial motion at the time the evidence is admitted.

Sunday, April 17, 2016

Challenging the Use of Recorded Conversations of Pretrial Detainees

      Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson  (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.
    Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”
    Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
    Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
    It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”

Tuesday, March 15, 2016

Gun Court - proposed voluntary discovery agreement

As correctly noted by my good pal Anonymous, I neglected to post the Gun Court voluntary discovery agreement - here it is: 

CR # ________________ 

It is hereby agreed between the parties to the above-entitled action: 

1. For those criminal cases referred to the Monroe County Gun Crimes Part, the District Attorney of Monroe County will, as soon as practicable, provide pre-indictment discovery to the defendant’s attorney of record, for the purpose of facilitating potential plea discussions. Discoverable materials include those items set forth in CPL Section 240.20(1) and may include, where applicable, the defendant’s DCJS record, any relevant medical records which the District Attorney obtains, any warrants issued in connection with the case, any photographs shown to the witnesses in a procedure conducted to determine the identity of the perpetrator of the crimes charged and all police reports and memoranda relating to the criminal charges set forth under the above-referenced crime report number. The District Attorney of Monroe County, however, reserves the right to redact from the items listed above, any information which, she, in her complete discretion, deems confidential. 

2. The defendant will, as soon as practicable, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL Section 240.30(1) which may be material and relevant to the pre-indictment discussions. 

3. Each party may inspect, photograph, copy or test any item disclosed by the other party pursuant to paragraphs (1) and (2) above, upon an appointment made at least two (2) days in advance, provided that suitable arrangements are made to preserve the chain of custody and integrity of any items taken for testing. 

4. Both parties recognize that the duty of disclosure imposed by paragraphs (1) and (2) of this agreement is voluntary and is a continuing one. In the event that the above-referenced crime matter cannot be resolved by a Superior Court Information but rather, is presented to a Monroe County Grand Jury and an indictment or prosecutor’s information is returned, materials subject to disclosure as contemplated within this agreement, pursuant to CPL Section 240.20 (1), will be disclosed within thirty (30) days of arraignment. Moreover, the defendant shall, within thirty (30) days of arraignment, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL 240.30 (1). 

Materials subject to disclosure under this agreement which are obtained after the thirty (30) day periods specified herein, will be disclosed within fifteen (15) days after they are obtained, or prior to the commencement of trial, whichever occurs first. 

5. In the event that an indictment or prosecutor’s information is handed up by a grand jury and voluntary disclosure has been provided pursuant to paragraph (4) of this agreement, the defendant will not submit requests, demands or motions pursuant to CPL Sections 200.95; 240.20; or 240.40(1) seeking any particular discovery materials previously provided by the District Attorney and the District Attorney will not submit any demands or motions pursuant to CPL Sections 240.30 or 240.40(2)(a) seeking any particular discovery previously provided by the defendant; however either party may submit requests or demands for any materials subject to disclosure under CPL Article 240 which have not been previously provided under the agreement. Furthermore, either party may file a written motion within forty-five (45) days of defendant’s arraignment, except that such motion may, for good cause shown, be made at any time before commencement of trial. 

6. The District Attorney reserves the right to submit a written motion pursuant to CPL Section 240.40(2)(b) for the provision of non-testimonial evidence. 

7. The District Attorney consents to an enlargement of defendant’s time in which to serve a Notice of Alibi pursuant to CPL Section 250.20 until forty-five (45) days after defendant’s arraignment on the indictment or prosecutor’s information. 

8. The parties will exchange lists of the witnesses whom they expect to call in their direct cases at trial, immediately prior to the commencement of trial. 

Information on the new Monroe County Gun Court Part

The following description of the "Gun Crimes Part" was generated as a result of meetings with Supreme Court Justice Thomas Moran, District Attorney Sandra Doorley and Monroe County Public Defender Timothy Donaher, as well as several others.  We are sharing this with you so that you will become aware of the process.  This memo does not reflect any endorsement of the process by ETKS or its attorneys:

Gun Crimes Part

There is a new Supreme Court part designated to handle crimes involving guns.  The Court, named the “Gun Crimes Part”, began accepting cases during the last two months.  Defendants charged with Criminal Possession of a Weapon in the Second Degree or Criminal Possession of a Weapon in the Third Degree as top counts, or other felonies involving guns, will have their cases directed to this court, often referred to as “Gun Court.”  Supreme Court Justice Thomas E. Moran will preside over the court.

On Friday, December 4, 2015 Judge Moran, District Attorney Sandra Doorley and Dave Fluellen, a probation officer in charge of a component program  of the court (“Swift, Certain and Fair”) met with defense attorneys and some court personnel to discuss the program.  In subsequent meetings among the key players, issues relating to discovery and the contract have been addressed.  Although all details have not been finalized, in general, the following procedures will be used.  

Gun Crimes Part cases in general:

Defendants charged with CPW2, CPW3 or other felony charges involving guns occurring in the city of Rochester will be arraigned in Part 5.  The PH date will be set.  If during preliminary negotiations there is a possibility of a plea, attorneys can request an adjournment to “set” a PH as we often do now.  

Discovery was discussed preliminarily at the meeting, and in greater detail during later discussions between Sandra Doorley and Tim Donaher, the Monroe County Public Defender.  Ms. Doorley ultimately agreed that if the defense attorney signs a discovery agreement, discovery as set forth in the agreement will be provided.  (A copy of the discovery agreement is attached.  Note – defense counsel does waive the right to a Bill of Particulars, and certain other rights, so defense counsel should review the agreement before deciding whether to sign.)

Judge Moran will oversee all plea negotiations.  If there is an adjournment to set a preliminary hearing for the purpose of plea negotiations, the case will be forwarded to Judge Moran, who will handle the preliminary hearing if there is no plea agreement reached and the case has not been indicted.  Preliminary hearings will be at 9:00 a.m.

If the case is indicted on the CPW2 or CPW3 the case will be forwarded to Judge Moran.  At the indictment stage, cases will be tagged for Gun Crimes Part with a stamp on the indictment.

If you want to have a pre-plea investigation ordered during the course of negotiations prior to indictment, Judge Moran will be the judge to issue the order.

Sandra Doorley noted that prosecutors will have the discretion to offer reduced charges in appropriate cases, with supervisor approval.  

Judge Moran expressed a preference that cases in which there will be a reduction be pled before indictment, and that reductions after indictment would not be common.  He also indicated that one of the goals of the new court include quicker handling of cases.  So if you are trying to reach a resolution, since the case will be going to Judge Moran after indictment, you might want to try to resolve it before indictment with Judge Moran’s participation.

Indicted Cases:

Indicted cases will be stamped “Gun Crimes Part.”  They will be litigated before Judge Moran.  Nothing about this process limits the defense from engaging in any appropriate litigation on these cases.

Swift, Certain and Fair:

(Not kidding, this is really the name of the new initiative. Sounds like someone is trying to convince themselves). There is a new initiative involving interim probation supervision of certain defendants charged with CPW3, CPW2 and other violent felony cases called “Swift, Certain and Fair” which will be actively overseen by Judge Moran. This new program was the result of planning by the Monroe County District Attorney’s Office, Monroe County Probation, the Rochester Police Department, R.I.T., and DCJS.  As part of the DCJS GIVE initiative, the grant provides funding for one Probation Officer position and additional GPS monitoring capability.  

The program will accept up to sixteen cases of defendants who are between the ages of sixteen and twenty-four, not predicate felons and are considered to be at-risk, but potentially able to comply with program requirements. Participation in the program will be a disposition that defense counsel can request, and for which a client must be screened.  If a client is accepted to the program all parties will sign a contract, as they do in diversion courts. 

Defendants in this program will be placed on interim probation under the supervision of a unit headed by Dave Fluellen of the Probation Department.  They will have to plead to a felony at the outset and sign a contract that the defense attorney and prosecutor will negotiate.  Defendants in this program will have to wear ankle bracelets for the first six months of the interim probation.  They will be carefully monitored, provided case managers, and receive rewards for compliance and sanctions for noncompliance, based on a graduated scale of sanctions, as they progress through the program.  If a participant successfully completes the program within a year, s/he will be allowed to withdraw his/her initial plea and plead to a reduced charge with a probation sentence.  If the client violates a condition the “Swift, Certain and Fair” component kicks in – the client gets a notice, even if it is late at night, to appear before Judge Moran at 9:00 the next morning.  Attorneys will also be notified and expected to appear.
The existence of “Swift, Certain and Fair” will not preclude YO eligible defendants who are not considered as “at risk” or otherwise unable to obtain entry into “Swift, Certain and Fair”  from obtaining YO dispositions with probation as a sentence, or other defendants who may otherwise  be appropriate for a probation sentence from obtaining that disposition.


All of the details have not yet been worked out, and there are still questions about aspects of the program, such as what will happen to a defendant who is on felony probation – where will the new VOP go?  Or what will happen if a person who has a felony charge pending picks up a new gun charge – will the older felony follow the defendant to gun court?  As more information is developed, it will be circulated.

Sunday, February 28, 2016

Statutory presumptions, Part 2: Factual predicates are required to justify the use of presumptions

Recall that we noted in the last post that presumptions may not be invoked where the underlying facts needed to support them are not present (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).  When are the underlying facts insufficient to warrant invoking a presumption?  As you might expect, there’s no black on white rule, so we’ll lay out the considerations below.  

Consider a common fact pattern: police find a loaded handgun under the front seat of a car occupied by the defendant and two others. All three are charged with Criminal Possession of a Weapon in the Second Degree.  As is typically the case, there is no direct proof bearing on defendant’s alleged intent to unlawfully use the weapon found in the vehicle, nor is there any proof regarding defendant’s actual possession or knowledge of the presence of the weapon in the vehicle.  So, the prosecution’s case relies on two presumptions: first, that everyone in the vehicle is presumed to possess the weapon (Penal Law § 265.15[3]) and second, that one who possesses a loaded weapon is presumed to do so with the intent to use it unlawfully against another (Penal Law § 265.15[4]). 

We’ll talk about problems with presumption stacking next time (sort of like multiplying fractions - you wind up with a smaller, not a greater number or burden of proof).  Leave that aside for now while we consider the use of each presumption independently.  What does case law say about the requisite factual basis?  With apologies for citation format, then:

“Presumptions must be carefully scrutinized before they will be allowed to operate against an accused since there is a real and substantial possibility that they will conflict with the overriding, more fundamental presumption of innocence accorded to every defendant” (Leary v United States, 395 US 6).  Absent a “a reasonably high degree of probability that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166), “the danger . . . is that of logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – which undetected, elevate coincidence and, therefore, suspicion into permissible inference” (People v Cleague, 22 NY2d 363).  In such a cases, reliance on a presumption may lead to a mistaken or demonstrably incorrect result. 

For example, police officers possess deadly weapons, however that possession, without more, is no evidence of any intention to use those weapons unlawfully.  In fact, just the opposite presumption would be more likely: that the officers possess their weapons for the purpose of enforcing, rather than violating, the law.  The legislature recognized specific instances where the facts affirmatively defeat the presumption by enacting exemptions in Penal Law § 265.20; section 265.20(a)(1)(b) relates to police officers.

Penal Law § 10.00(8) defines “possession” as “to have physical possession or otherwise to exercise dominion or control over tangible property.”  Thus, in order for the presumption of possession to be constitutionally applied, the proof at trial must support a rational inference that each occupant of the vehicle was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over it (County Court of Ulster County v Allen, supra, 442 US 140, 152). 

In Ulster County, three men and a sixteen-year-old girl were traveling together from Detroit to New York City.  When the car was stopped for a traffic violation, a trooper noticed a gun sticking out of the girl’s open handbag, which held two guns.  The Supreme Court reasoned that because “the guns were lying on the car’s floor or seat in plain view” it was “rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and intent to exercise dominion and control over them.”  The Court found a rational basis permitting invocation of the presumption of possession where codefendants were not casual passengers but well-known to each other, and the weapons were not “out of defendants’ sight” (442 US at 152).

The Court did not reach the issue of the constitutionality of the presumption in cases where a gun was hidden in a car or inaccessible to a defendant.  Rather, the Court refused to find Penal Law § 265.14(3) unconstitutional on its face simply because it could “sweep[] within its compass many occupants who may not know they are riding with a gun (which may be out of their sight), and many who may be aware of the presence of the gun but not permitted to access it,” in the grounds that the defendants lacked standing to challenge the application of the presumption in these hypothetical situations.

In its Ulster County decision, however, the Second Circuit held that in a case involving casual passengers and a gun concealed from defendant’s sight, invocation of the automobile–  possession presumption would unconstitutionally diminish the People’s burden of proof  (Ulster County v Allen, 568 F2d 998). 

Such concerns might be triggered (ha, ha) where there is no independent evidence that the defendant knew that the gun was in the vehicle, or lacked any relationship with the others in the vehicle other than that of “casual passengers,” which could support a finding that they shared a common purpose. Absent any independent supporting evidence, there could be no rational basis to infer that the defendant was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over the gun.  Furthermore, there would be no substantial assurance that the presumed fact of possession is more likely than not to flow from the proven fact upon which it is made to depend – the defendant’s presence in a car where a concealed gun was found.  

Under these circumstances, for a conviction to stand, it must be “clear that the presumption is not the sole and sufficient basis for a finding of guilt” (Ulster County v Allen, 442 US at 165).  Where the prosecution’s entire case for possession is based solely upon the fact that the defendant was present in a car where a concealed handgun was found and the record is devoid of any independent factual basis that could suggest that the defendant knew that a gun was present or had the ability to exercise dominion or control over it, resort to the presumptions of possession or the intention to use unlawfully would be improper.

Sunday, February 7, 2016

Mr. Guilty, I presume? The use of statutory presumptions in criminal prosecutions.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

Monday, January 18, 2016

Reversal for Prosecutorial Misconduct Seems Preferable to Reversal for Ineffective Assistance of Counsel

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.
But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 
The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 
There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 
Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.
As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that
Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.
Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation
He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.
Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.
Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.
However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.