If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

Another successful challenge to denial of Parole Release.

        We've discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board's imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent's release in the Matter of Caufield v. NYS Division of Parole. In our representation of the respondent, our petition noted he was sentenced in July 2013 to an indeterminate term of 1 1/3 - 4 years on his plea to a Class D felony of DWI. At his appearance before the Parole Board in July 2014, he had already been awarded Merit Time pursuant to Corrections Law Section 805 and a Certificate of Earned Eligibility. He had completed the DWI program, received a favorable COMPAS Risk and Needs Assessment and provided the Board with favorable letters of support, a personal recovery statement and an offer of prospective employment. The respondent appeared via video conference with the Board, who denied his release and ordered a 24 month hold. Their determination recited the usual boiler plate"there is a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law and his release at this time is incompatible with the welfare and safety of the community." 

         Our petition noted among other things that the Board's decision failed to consider his exemlary prison disciplinary record, positive programming, contributions to the prison community and support available upon release. It also failed to consider the sentencing Court's specific recommendation to the Board, encouraging the respondent's early release if he did complete all the available programs. 

          We argued the denial of release was irrational, arbitrary and capricious. The Supreme Court Decision determined the "twenty four month hold to be excessive and an abuse of discretion. Accordingly, the parole Board will vacate its imposition of a twenty four month hold, and instead impose a twelve month term."

           Keep fighting.

Another successful challenge to denial of Parole Release.

        We've discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board's imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent's release in the Matter of Caufield v. NYS Division of Parole. In our representation of the respondent, our petition noted he was sentenced in July 2013 to an indeterminate term of 1 1/3 - 4 years on his plea to a Class D felony of DWI. At his appearance before the Parole Board in July 2014, he had already been awarded Merit Time pursuant to Corrections Law Section 805 and a Certificate of Earned Eligibility. He had completed the DWI program, received a favorable COMPAS Risk and Needs Assessment and provided the Board with favorable letters of support, a personal recovery statement and an offer of prospective employment. The respondent appeared via video conference with the Board, who denied his release and ordered a 24 month hold. Their determination recited the usual boiler plate"there is a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law and his release at this time is incompatible with the welfare and safety of the community." 

         Our petition noted among other things that the Board's decision failed to consider his exemlary prison disciplinary record, positive programming, contributions to the prison community and support available upon release. It also failed to consider the sentencing Court's specific recommendation to the Board, encouraging the respondent's early release if he did complete all the available programs. 

          We argued the denial of release was irrational, arbitrary and capricious. The Supreme Court Decision determined the "twenty four month hold to be excessive and an abuse of discretion. Accordingly, the parole Board will vacate its imposition of a twenty four month hold, and instead impose a twelve month term."

           Keep fighting.

by Jill Paperno, Esq., 

author of Representing the Accused:A Practical Guide to Criminal Defense 

A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share.

There are certain things we can expect in a child sex abuse case.  Particular types of arguments and proof seem to consistently make their way into these cases.  The best way to handle these issues is to anticipate them and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling them:

Before trial

1.  The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  So if you have this inflammatory information in your client’s interrogation, move in limine to keep it out.  If it’s deemed relevant, request a Frye hearing, arguing that if the science does not support this, the evidence should not come in.  And even if it does, it’s probative value is outweighed by its prejudicial effect.  (Thanks Roger Brazill for the GAO article and suggestion for my motion.)

2.  The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given anecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance (again pointed out to me by Roger Brazill).  http://www.economica.ca/ew12_2p1.htm.  So again, move to preclude the use of any testimony of declining performance by the child, or ask for a Frye hearing.

There are numerous other motions in limine to make prior to trial.  I still move to preclude the CSAAS witness (you can’t make me call him “expert”).   Amusing anecdote – this fellow always testifies he is on the faculty of an upstate medical school.  I’ve looked into it.  I asked him if he said he was on the faculty there.  He said yes.  Did he have an office?  No.  Does he get paid a salary?  No – he does not get paid.  Is he on their website?  No.  (I’d called the school previously and they’d said that he was not on their faculty.)  He apparently takes interns and apparently gives a lecture or few lectures in which he teaches students to be sensitive to how children disclose.  I’m not quite sure.  I didn’t say it at the time, but where I come from, if you working for free, I think you’re called a volunteer. 

Many motions in limine you may make depend on the facts of your case.  If your client has had many youthful indiscretions, pay attention to whether the prosecution will try to highlight his many children with many mothers, and try to limit that citing People v. Presha  83 AD3d 1406. 

Jury selection

 I’ve written before about some of the issues I raise in jury selection.  I’ve added one to the collection.  At trial, prosecutors in our county almost always try to create the impression that the child must be testifying truthfully by eliciting details – colors of clothing or furniture or other things that, realistically, I doubt any child recalls.  So I ask a juror in voir dire, “If I said that you came into my garage and stole my bicycle last year, would that  be true?”  They almost always say no.  (This week was a funny exception.)  I then ask, “If I said that you came into my garage and stole my bicycle last year.  The garage is in our house, which is tan.  The bicycle is blue, and it was leaning against a green shelf.  You were wearing a red shirt that day.  Would that be true?”  Then I talk about details not making something true.  In the case I just tried, when the complainant said she remembered that during an incident alleged to have occurred two years ago she was wearing clothing with a certain cartoon character in a certain color, it seemed like it was so scripted. 

Prosecutors have started asking, if it’s a one witness case, whether a juror can convict on the testimony of one witness.  We’ve got to make sure we get right back at those jurors reminding them that of course they can convict if the witness’s testimony amounts to PBRD, but can they acquit if it doesn’t?  Will they?  Even if the witness is a child?

I do some voir dire on the CSAAS witness.  I talk about whether they can assess whether an opinion is scientific and what they will base it on.  I also talk about how they will hear that he does not know anything about the evidence in the case, and will come in and say every type of behavior is consistent with a child having been abused.  But he will also say every type of behavior is consistent with a child not having been abused. 

I talk about how our local specialist doctor in this area will come in and say that all normal findings are consistent with child sexual abuse if a complaint has been made, and that will be her conclusion in this case.  Not inconclusive or non-specific, but consistent with.  Can they promise to judge whether her testimony is unbiased and whether she adds anything to the information they have? 

Open

I talk to the jurors about how they will hear that there will be two witnesses offered as experts.  And that the doctor will claim that the findings are consistent, even if they are normal.  So the child of any person in the building, if a complaint was made , would have findings consistent with the child having been abused.  And the CSAAS witness testifies regardless of what the claims are.  So in every case where there is a complaint,  any person, guilty or not, will start out with two so-called expert witnesses testifying against him.

 Summation

I think all the CSAAS testimony is designed to reduce the burden of proof.  (And if you have a CSAAS witness coming to trial, please contact me.  There is so much to talk about!)  So I think we have to take the case out of the realm of child sex abuse and remind jurors they are not social workers, they are jurors in a criminal court.  This was my effort in my most recent case, in which there were numerous inconsistencies, and the complainant said she kept returning to the house to see the other kids who lived there (she did not live with the defendant) , she could have been picked up in the evening, but she decided to spend nights because she wanted to spend nights with the kids, even though the alleged abuse and attempted abuse happened nearly every time when she was sleeping there.  From my sum:

You heard Jane Doe’s testimony.  You know it is inconsistent and you know it doesn’t make sense.  And I’m guessing in another context, after hearing such testimony you would not hesitate to acquit.

So let’s think about how you would perceive a claim of your next door neighbor saying he was assaulted by another neighbor.  And the neighbor says, this guy came to my house while I was barbecuing and punched me.  He called me to the backyard and punched me.  He did it on three separate days.               

Then the neighbor says, well, yes, I told someone else the first time was when I was sleeping in a chair on the front porch.    Yes, I told a third person it was four times, and I told a cop it was once. 

I hated it when he punched me.  It was awful.

And every week I go to this guy’s house for dinner.  I like the company. 

You get the picture.  You would clearly discount the testimony. 

But we all recognize that claims of child sexual abuse are different.  They are the stuff that secrets are made of.  So yes, a secret may be kept.  And that is why Roland Summit wrote his article suggesting clinicians be open minded.  And his second article, cautioning about the use of this theory in court.

You are not clinicians, trying to provide treatment to a child who has made a claim.  You know this.  You are jurors here to assess whether there is proof beyond a reasonable doubt of each element. 

So whether or not you accept Summit’s theory, as Summit said, it was not intended to guide what happens in the courtroom.  In the courtroom there is a set of rules.  And those rules require proof beyond a reasonable doubt.

Unreliable testimony of a child, cannot be the basis for PBRD.  You’ve promised not to decide this case based on sympathy.  You agreed to make a determination – whether all of the elements of each charge have been proven beyond a reasonable doubt.

I also think it’s important to acknowledge the difficulty in dealing with a child sex abuse case to the jury.  So I’ll say something like this:

We have now, ended the testimony in this case.  But although that may have been a difficult process, the real challenges lie ahead for you.  Because nobody comes into a courtroom hearing allegations about sexual abuse and seeing a young child testify, and thinks “I can’t wait to acquit this guy.”

But you must.

Because the prosecution has failed to meet its burden of proof beyond a reasonable doubt with respect to each count of the indictment.

These are tough cases, and of course, you have to do what’s comfortable for you.  But I think these cases present a unique challenge, and it’s helpful to consult with others who have handled them.  And in fact, if you have any experts coming in at trial, it’s not only helpful, it’s required.  Good luck!

(Editor's note: Jill is too modest to mention that, once again, she obtained a complete acquittal for her client).

by Jill Paperno, Esq., 

author of Representing the Accused:A Practical Guide to Criminal Defense 

A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share.

There are certain things we can expect in a child sex abuse case.  Particular types of arguments and proof seem to consistently make their way into these cases.  The best way to handle these issues is to anticipate them and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling them:

Before trial

1.  The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  So if you have this inflammatory information in your client’s interrogation, move in limine to keep it out.  If it’s deemed relevant, request a Frye hearing, arguing that if the science does not support this, the evidence should not come in.  And even if it does, it’s probative value is outweighed by its prejudicial effect.  (Thanks Roger Brazill for the GAO article and suggestion for my motion.)

2.  The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given anecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance (again pointed out to me by Roger Brazill).  http://www.economica.ca/ew12_2p1.htm.  So again, move to preclude the use of any testimony of declining performance by the child, or ask for a Frye hearing.

There are numerous other motions in limine to make prior to trial.  I still move to preclude the CSAAS witness (you can’t make me call him “expert”).   Amusing anecdote – this fellow always testifies he is on the faculty of an upstate medical school.  I’ve looked into it.  I asked him if he said he was on the faculty there.  He said yes.  Did he have an office?  No.  Does he get paid a salary?  No – he does not get paid.  Is he on their website?  No.  (I’d called the school previously and they’d said that he was not on their faculty.)  He apparently takes interns and apparently gives a lecture or few lectures in which he teaches students to be sensitive to how children disclose.  I’m not quite sure.  I didn’t say it at the time, but where I come from, if you working for free, I think you’re called a volunteer. 

Many motions in limine you may make depend on the facts of your case.  If your client has had many youthful indiscretions, pay attention to whether the prosecution will try to highlight his many children with many mothers, and try to limit that citing People v. Presha  83 AD3d 1406. 

Jury selection

 I’ve written before about some of the issues I raise in jury selection.  I’ve added one to the collection.  At trial, prosecutors in our county almost always try to create the impression that the child must be testifying truthfully by eliciting details – colors of clothing or furniture or other things that, realistically, I doubt any child recalls.  So I ask a juror in voir dire, “If I said that you came into my garage and stole my bicycle last year, would that  be true?”  They almost always say no.  (This week was a funny exception.)  I then ask, “If I said that you came into my garage and stole my bicycle last year.  The garage is in our house, which is tan.  The bicycle is blue, and it was leaning against a green shelf.  You were wearing a red shirt that day.  Would that be true?”  Then I talk about details not making something true.  In the case I just tried, when the complainant said she remembered that during an incident alleged to have occurred two years ago she was wearing clothing with a certain cartoon character in a certain color, it seemed like it was so scripted. 

Prosecutors have started asking, if it’s a one witness case, whether a juror can convict on the testimony of one witness.  We’ve got to make sure we get right back at those jurors reminding them that of course they can convict if the witness’s testimony amounts to PBRD, but can they acquit if it doesn’t?  Will they?  Even if the witness is a child?

I do some voir dire on the CSAAS witness.  I talk about whether they can assess whether an opinion is scientific and what they will base it on.  I also talk about how they will hear that he does not know anything about the evidence in the case, and will come in and say every type of behavior is consistent with a child having been abused.  But he will also say every type of behavior is consistent with a child not having been abused. 

I talk about how our local specialist doctor in this area will come in and say that all normal findings are consistent with child sexual abuse if a complaint has been made, and that will be her conclusion in this case.  Not inconclusive or non-specific, but consistent with.  Can they promise to judge whether her testimony is unbiased and whether she adds anything to the information they have? 

Open

I talk to the jurors about how they will hear that there will be two witnesses offered as experts.  And that the doctor will claim that the findings are consistent, even if they are normal.  So the child of any person in the building, if a complaint was made , would have findings consistent with the child having been abused.  And the CSAAS witness testifies regardless of what the claims are.  So in every case where there is a complaint,  any person, guilty or not, will start out with two so-called expert witnesses testifying against him.

 Summation

I think all the CSAAS testimony is designed to reduce the burden of proof.  (And if you have a CSAAS witness coming to trial, please contact me.  There is so much to talk about!)  So I think we have to take the case out of the realm of child sex abuse and remind jurors they are not social workers, they are jurors in a criminal court.  This was my effort in my most recent case, in which there were numerous inconsistencies, and the complainant said she kept returning to the house to see the other kids who lived there (she did not live with the defendant) , she could have been picked up in the evening, but she decided to spend nights because she wanted to spend nights with the kids, even though the alleged abuse and attempted abuse happened nearly every time when she was sleeping there.  From my sum:

You heard Jane Doe’s testimony.  You know it is inconsistent and you know it doesn’t make sense.  And I’m guessing in another context, after hearing such testimony you would not hesitate to acquit.

So let’s think about how you would perceive a claim of your next door neighbor saying he was assaulted by another neighbor.  And the neighbor says, this guy came to my house while I was barbecuing and punched me.  He called me to the backyard and punched me.  He did it on three separate days.               

Then the neighbor says, well, yes, I told someone else the first time was when I was sleeping in a chair on the front porch.    Yes, I told a third person it was four times, and I told a cop it was once. 

I hated it when he punched me.  It was awful.

And every week I go to this guy’s house for dinner.  I like the company. 

You get the picture.  You would clearly discount the testimony. 

But we all recognize that claims of child sexual abuse are different.  They are the stuff that secrets are made of.  So yes, a secret may be kept.  And that is why Roland Summit wrote his article suggesting clinicians be open minded.  And his second article, cautioning about the use of this theory in court.

You are not clinicians, trying to provide treatment to a child who has made a claim.  You know this.  You are jurors here to assess whether there is proof beyond a reasonable doubt of each element. 

So whether or not you accept Summit’s theory, as Summit said, it was not intended to guide what happens in the courtroom.  In the courtroom there is a set of rules.  And those rules require proof beyond a reasonable doubt.

Unreliable testimony of a child, cannot be the basis for PBRD.  You’ve promised not to decide this case based on sympathy.  You agreed to make a determination – whether all of the elements of each charge have been proven beyond a reasonable doubt.

I also think it’s important to acknowledge the difficulty in dealing with a child sex abuse case to the jury.  So I’ll say something like this:

We have now, ended the testimony in this case.  But although that may have been a difficult process, the real challenges lie ahead for you.  Because nobody comes into a courtroom hearing allegations about sexual abuse and seeing a young child testify, and thinks “I can’t wait to acquit this guy.”

But you must.

Because the prosecution has failed to meet its burden of proof beyond a reasonable doubt with respect to each count of the indictment.

These are tough cases, and of course, you have to do what’s comfortable for you.  But I think these cases present a unique challenge, and it’s helpful to consult with others who have handled them.  And in fact, if you have any experts coming in at trial, it’s not only helpful, it’s required.  Good luck!

(Editor's note: Jill is too modest to mention that, once again, she obtained a complete acquittal for her client).

By William T. Easton

As criminal defense attorneys, we are inclined to think of venue as something we want to change. Thus, we occasionally make a motion for a change of venue based on prejudicial pre-trial publicity. To preserve our client’s right to due process, we want to get out of Dodge– preferably as far away as possible–to avoid the pervasive publicity generally concentrated in the locale where the crime occurred.  As a result, as defense attorneys we may undervalue the inverse motion, bringing the case back closer to the defendant or where the crime was committed.  These instances are usually conspiracy offenses, where our client is far away from the other conspirators, or a fraud case–where the purported financial victim is headquartered in a distant city. Despite legislative and prosecutorial hostility to any interference with prosecutorial convenience, this type of motion has stronger constitutional rooting than a pure due process motion to remove a case to a different district. 

The Sixth Amendment provides that the accused shall have the right to “an impartial jury of the State and district wherein the crime shall had been committed,” U.S. Const. amend. VI.  Additionally, the Constitution provides that provides that trials “shall be held in the State where the....Crimes shall have been committed,” U.S. Const. art III § 2, cl. 3. Statutorily, Fed.R.Crim.P. 18 provides that venue lies in the district where the crime was committed with due regard for the convenience of the “defendant, any victim, and the witnesses, and the prompt administration of justice.”

Venue should be distinguished from jurisdiction.  The principles of federal jurisdiction are entirely separate from the constitutional basis of venue–which is the location of the trial itself.  Regarding venue, or “vicinage” as it was called, the founding fathers were intensely concerned with the plight of people being removed far from their homes to stand trial in distant locales.  This was a grievance specifically cited in the Declaration of Independence and was expressly inserted–twice–in the Constitution at the passionate insistence of the anti-federalists.

In the modern era, as prosecutorial authorities–especially federal prosecutors–became more powerful and sophisticated, they have pursued multi-jurisdictional crimes with zeal, choosing  the venue of these prosecutions according to their own preferences.  At the same time, Congress passed statutes  allowing  the prosecution almost unfettered discretion regarding where to bring the prosecution.  These statutes focused on “continuing offenses” such as conspiracy, or on offenses involving the mail/wire transmissions, and allow venue just about anywhere.  See 18 USC  § 3237(a) allowing prosecution of continuing offenses in any district where “ ....such offense was begun, continued, or completed.”   Regarding mail offenses, 18 USC § 3237(a) goes on to state that:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

18 USC § 3237(a)

Such expansive statutes stand in tension to the express constitutional limitations–a tension that both the Second Circuit and the United States Supreme Court have recognized.

In United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181 (2d Cir. 1989) defendants were charged under the Federal Food, Drug, and Cosmetic Act with “[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated or misbranded.” 21 U.S.C. § 331(a).  Although they were prosecuted in the Eastern District of New York, their only connections with that venue were that they had placed telephone orders for adulterated apple juice concentrate to suppliers there and had mailed the suppliers confirmations of these orders. Beech-Nut, 871 F.2d at 1190. In Beech-Nut, the Second Circuit  held that “these communications were not part of the offense of introducing the offending juice into commerce but were merely prior and preparatory to that offense.”  The Beechnut Court further noted that “Whether the crime be continuing or noncontinuing, venue is not proper in a district in which the only acts performed by the defendant were preparatory to the offense and not part of the offense.”

Years later, the United States Supreme Court validated Beech-Nut in United States v. Cabrales, 524 U.S. 1, 6-7 (1998), holding that venue for a money laundering offense that physically took place in Florida did not lie in Missouri, where the money originated as direct proceeds of a drug conspiracy that occurred there despite the government’s efforts to characterize the crime as “continuing.”

Re-asserting the  importance of venue after Cabrales, the Second Circuit has emphasized the constitutional and historical anchors of the requirement that a trial be held where the crime occurred rather than a distant locale. “Our constitutional rule–based on its history–requires that venue be linked to the nature of the crime charged and where the acts constituting it took place, and that the accused not be subject to the hardship of being tried in a district remote from where the crime was committed.” United States v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000).  To that end, the Circuit has suggested a four part “substantial contacts test” test for venue that is relatively favorable to the defendant and much more restrictive than the federal venue statutes. The “substantial contacts” test takes into account four main factors: (1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for accurate factfinding.” United States v. Reed,773 F.2d 477, 481 (2d Cir. 1985).

So if you have a client who is roped into a federal prosecution in a distant jurisdiction, in addition to retaining counsel in that jurisdiction, you should certainly explore a motion to bring the case back to where your client’s alleged crime occurred.  Sometimes, there’s no place like home. 

By William T. Easton

As criminal defense attorneys, we are inclined to think of venue as something we want to change. Thus, we occasionally make a motion for a change of venue based on prejudicial pre-trial publicity. To preserve our client’s right to due process, we want to get out of Dodge– preferably as far away as possible–to avoid the pervasive publicity generally concentrated in the locale where the crime occurred.  As a result, as defense attorneys we may undervalue the inverse motion, bringing the case back closer to the defendant or where the crime was committed.  These instances are usually conspiracy offenses, where our client is far away from the other conspirators, or a fraud case–where the purported financial victim is headquartered in a distant city. Despite legislative and prosecutorial hostility to any interference with prosecutorial convenience, this type of motion has stronger constitutional rooting than a pure due process motion to remove a case to a different district. 

The Sixth Amendment provides that the accused shall have the right to “an impartial jury of the State and district wherein the crime shall had been committed,” U.S. Const. amend. VI.  Additionally, the Constitution provides that provides that trials “shall be held in the State where the....Crimes shall have been committed,” U.S. Const. art III § 2, cl. 3. Statutorily, Fed.R.Crim.P. 18 provides that venue lies in the district where the crime was committed with due regard for the convenience of the “defendant, any victim, and the witnesses, and the prompt administration of justice.”

Venue should be distinguished from jurisdiction.  The principles of federal jurisdiction are entirely separate from the constitutional basis of venue–which is the location of the trial itself.  Regarding venue, or “vicinage” as it was called, the founding fathers were intensely concerned with the plight of people being removed far from their homes to stand trial in distant locales.  This was a grievance specifically cited in the Declaration of Independence and was expressly inserted–twice–in the Constitution at the passionate insistence of the anti-federalists.

In the modern era, as prosecutorial authorities–especially federal prosecutors–became more powerful and sophisticated, they have pursued multi-jurisdictional crimes with zeal, choosing  the venue of these prosecutions according to their own preferences.  At the same time, Congress passed statutes  allowing  the prosecution almost unfettered discretion regarding where to bring the prosecution.  These statutes focused on “continuing offenses” such as conspiracy, or on offenses involving the mail/wire transmissions, and allow venue just about anywhere.  See 18 USC  § 3237(a) allowing prosecution of continuing offenses in any district where “ ....such offense was begun, continued, or completed.”   Regarding mail offenses, 18 USC § 3237(a) goes on to state that:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

18 USC § 3237(a)

Such expansive statutes stand in tension to the express constitutional limitations–a tension that both the Second Circuit and the United States Supreme Court have recognized.

In United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181 (2d Cir. 1989) defendants were charged under the Federal Food, Drug, and Cosmetic Act with “[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated or misbranded.” 21 U.S.C. § 331(a).  Although they were prosecuted in the Eastern District of New York, their only connections with that venue were that they had placed telephone orders for adulterated apple juice concentrate to suppliers there and had mailed the suppliers confirmations of these orders. Beech-Nut, 871 F.2d at 1190. In Beech-Nut, the Second Circuit  held that “these communications were not part of the offense of introducing the offending juice into commerce but were merely prior and preparatory to that offense.”  The Beechnut Court further noted that “Whether the crime be continuing or noncontinuing, venue is not proper in a district in which the only acts performed by the defendant were preparatory to the offense and not part of the offense.”

Years later, the United States Supreme Court validated Beech-Nut in United States v. Cabrales, 524 U.S. 1, 6-7 (1998), holding that venue for a money laundering offense that physically took place in Florida did not lie in Missouri, where the money originated as direct proceeds of a drug conspiracy that occurred there despite the government’s efforts to characterize the crime as “continuing.”

Re-asserting the  importance of venue after Cabrales, the Second Circuit has emphasized the constitutional and historical anchors of the requirement that a trial be held where the crime occurred rather than a distant locale. “Our constitutional rule–based on its history–requires that venue be linked to the nature of the crime charged and where the acts constituting it took place, and that the accused not be subject to the hardship of being tried in a district remote from where the crime was committed.” United States v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000).  To that end, the Circuit has suggested a four part “substantial contacts test” test for venue that is relatively favorable to the defendant and much more restrictive than the federal venue statutes. The “substantial contacts” test takes into account four main factors: (1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for accurate factfinding.” United States v. Reed,773 F.2d 477, 481 (2d Cir. 1985).

So if you have a client who is roped into a federal prosecution in a distant jurisdiction, in addition to retaining counsel in that jurisdiction, you should certainly explore a motion to bring the case back to where your client’s alleged crime occurred.  Sometimes, there’s no place like home. 

NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review

(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner. "The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI Examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed." "These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. "While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts." Norman L. Reimer, Executor Director of NACDL added, "It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions."        The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed. The Innocence Project and NACDL, with its partners David Koropp, Partner at Winston & Strawn LLP, and his colleagues, and Michael R. Bromwich, Managing Principal of The Bromwich Group, who served as the Inspector General of DOJ from 1994-1999, worked with the FBI and DOJ in determining the scope and protocols for the review. The review encompasses cases where FBI microscopic hair comparison was used to link a defendant to a crime and covers cases in both federal and state court systems. It does not, however, cover cases where hair comparison was conducted by state and local crime labs, whose examiners may have been trained by the FBI. The FBI has trained hundreds of state hair examiners in annual two-week training courses.  The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 - 96% of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change.  All but two of 28 FBI examiners provided testimony that contained erroneous statements or authored lab reports with such statements. The review has shown that the FBI Examiners testified in cases in 41 states.   In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps:       Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long. Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements. Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI. The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press.  The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.   Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.  Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence. Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.

NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review

(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner. "The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI Examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed." "These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. "While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts." Norman L. Reimer, Executor Director of NACDL added, "It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions."        The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed. The Innocence Project and NACDL, with its partners David Koropp, Partner at Winston & Strawn LLP, and his colleagues, and Michael R. Bromwich, Managing Principal of The Bromwich Group, who served as the Inspector General of DOJ from 1994-1999, worked with the FBI and DOJ in determining the scope and protocols for the review. The review encompasses cases where FBI microscopic hair comparison was used to link a defendant to a crime and covers cases in both federal and state court systems. It does not, however, cover cases where hair comparison was conducted by state and local crime labs, whose examiners may have been trained by the FBI. The FBI has trained hundreds of state hair examiners in annual two-week training courses.  The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 - 96% of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change.  All but two of 28 FBI examiners provided testimony that contained erroneous statements or authored lab reports with such statements. The review has shown that the FBI Examiners testified in cases in 41 states.   In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps:       Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long. Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements. Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI. The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press.  The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.   Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.  Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence. Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.

by James Eckert, Monroe County Assistant Public Defender

The Court of Appeals, Fahey, J. writing for the court, held: "as a matter of state evidentiary law, that evidence of a defendant's selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant's admission of guilt or to impeach the credibility of the defendant's version of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15])  Thus, if a defendant waives Miranda, speaks to police about rape accusations, but refused to answer whether he had sex with the complainant, his refusal to answer could not be used to imply consciousness of guilt (the prosecution said the defendant "did not deny" having sex with the complainant) or to cast doubt on his other statements about the incident.  "A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all."  The defendant's DNA was found in the complainant, he testified at the Grand Jury that sex was consensual, but did not testify at trial.

While this is merely an extension of the general rule that a defendant's silence cannot be used against him, it is important to have it clarified. The court noted that there are unusual circumstances in which silence will be admissible (People v Rothschild, 35 NY2d 355 [1974] [defendant police officer had a duty to report to his supervisors if he was taking the bribe money as part of a "sting"]; People v Savage, 50 NY2d 673 [1980] [defendant told police he shot victim during an altercation, properly cross-examined on his failure to make claim that victim was trying to rob him, as he testified at trial]).  

The primary difference was that those two cases involved cross-examination, not introduction of the defendant's silence as part of the prosecution's case in chief, "In those cases, the People used conspicuous omissions from the defendants' statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant's failure to tell the detective during custodial interrogation that he and the victim had consensual sex."  The prosecution claimed that they were, effectively, cross-examining the defendant's grand jury testimony. However, as the court pointed out, the prosecution chose to introduce this testimony itself. "The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant's silence." The court also noted that they introduced the selective silence before the grand jury testimony.

Therefore, the rule in New York is that "Evidence of a defendant's selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as 'a device for impeachment' of a defendant's trial testimony in limited and unusual circumstances".  

Two judges would have held the error harmless.

by James Eckert, Monroe County Assistant Public Defender

The Court of Appeals, Fahey, J. writing for the court, held: "as a matter of state evidentiary law, that evidence of a defendant's selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant's admission of guilt or to impeach the credibility of the defendant's version of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15])  Thus, if a defendant waives Miranda, speaks to police about rape accusations, but refused to answer whether he had sex with the complainant, his refusal to answer could not be used to imply consciousness of guilt (the prosecution said the defendant "did not deny" having sex with the complainant) or to cast doubt on his other statements about the incident.  "A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all."  The defendant's DNA was found in the complainant, he testified at the Grand Jury that sex was consensual, but did not testify at trial.

While this is merely an extension of the general rule that a defendant's silence cannot be used against him, it is important to have it clarified. The court noted that there are unusual circumstances in which silence will be admissible (People v Rothschild, 35 NY2d 355 [1974] [defendant police officer had a duty to report to his supervisors if he was taking the bribe money as part of a "sting"]; People v Savage, 50 NY2d 673 [1980] [defendant told police he shot victim during an altercation, properly cross-examined on his failure to make claim that victim was trying to rob him, as he testified at trial]).  

The primary difference was that those two cases involved cross-examination, not introduction of the defendant's silence as part of the prosecution's case in chief, "In those cases, the People used conspicuous omissions from the defendants' statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant's failure to tell the detective during custodial interrogation that he and the victim had consensual sex."  The prosecution claimed that they were, effectively, cross-examining the defendant's grand jury testimony. However, as the court pointed out, the prosecution chose to introduce this testimony itself. "The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant's silence." The court also noted that they introduced the selective silence before the grand jury testimony.

Therefore, the rule in New York is that "Evidence of a defendant's selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as 'a device for impeachment' of a defendant's trial testimony in limited and unusual circumstances".  

Two judges would have held the error harmless.

Evidence as to what was said by an interrogating police officer during the interrogation, including testimony that officer told the suspect/defendant that he thought he was lying in denying committing the crime is arguably admissible as it tended to explain to the jury the circumstances of the alleged statements, thereby countering a claim that the statement was not voluntarily obtained (People v Walden, 148 AD2d 971 [4th Dept 1989]). However, in People v Pabon (--- AD3d ----, 2015 WL 1380113 [4th Dept 3/27/15]), the Appellate Division, Fourth Department, citing People v Kozlowski (11 NY3d 223 [2008]) has recently held that it is error for the prosecutor to elicit that, in fact, it was the officer’s opinion that the defendant lied during the interrogation when he denied committing the charged crimes or to explain why he believed that the defendant way lying.

In  Kozlowski, the Court of Appeals explained what a witness may and may not say with respect to an opinion as to whether the defendant’s version of events is credible. (People v Kozlowski, 11 NY3d 223 [2008]). Witnesses are permitted to testify about facts, but not as to their opinion as to whether the defendant’s version of events was believable:

The line is crossed not when a witness relates facts that may be prejudicial, but when he or she conveys-either directly or indirectly-a personal opinion regarding the defendant's criminal guilt (citations omitted).... What was impermissible about the testimony was that its sole purpose was to bolster the testimony of another witness by explaining that his version of the events was more “believable” (citation omitted). It was thus the equivalent of an opinion that the defendant was guilty, which is impermissible.

(People v Kozlowski, 11 NY3d 223, 240 [2008].)

Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s  “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)

In People v Glover (195 AD2d 999 [4th Dept 1993]), the Court held that it was not improper for a police officer to describe what he had told the suspect prior to the suspect making a statement. The Court held that the officer’s statement to the suspect of the evidence of guilt “. . . was not hearsay because the testimony was not offered for its truth, but to establish the circumstances in which the statement was obtained, and to rebut defendant’s argument that the officer coerced or fabricated defendant’s statement.” People v Glover, 195 AD2d 999 (4th Dept 1993). By contrast, what is prohibited is for a prosecutor to elicit from the officer the officer’s opinion that the defendant was lying when he denied responsibility. That is the very type of testimony which this Court implied in Glover would be improper and should be precluded as it tends to usurp the factfinder’s function (People v Jennings, 33 AD3d 378 [1st Dept 2006]).

This rule parallels the rule which prohibits a prosecutor from expressing her personal belief to the jury that the defendant is a liar. (People v Grice, 100 AD2d 419, 421 [4th Dept. 1984] [prosecutor’s remarks improperly placed before the jury the prosecutor's personal belief that the defendant was lying]; People v Shanis, 36 NY2d 697, 699 [1975]).

Just as a  prosecutor exceeds the bounds of legitimate advocacy by expressing, as the prosecutor did in this case, a personal opinion on a defendant’s truthfulness (see People v Wlasiuk, 32 AD3d 674 [2006], lv dismissed 7 NY3d 871[2006]), she may not elicit the police officer’s opinions on a defendant’s truthfulness or guilt.