Thursday, March 11, 2010

Ten Simple Rules

The below are general rules, often subject to obscure exceptions, and if unusual factors warrant, even very good general advice is best ignored (hence the name). Still, there are things which are not news, but worth a reminder.

1 - In your opening statement don't take on a burden, don't offer or promise to prove things.

2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.

3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.

4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.

5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]

6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?

7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.

8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).

9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.

10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.

1 comment:

  1. 11. In New York, it's illegal to have sex with a dead body. It's also illegal to have sex with an animal. But it's not illegal to have sex with a dead animal. Because this is not an affirmative defense the People must prove beyond a reasonable doubt that the animal was alive. Good luck with that.