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A.4)LAWYER IN CRIM. LITIGATION

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Problem pp. 482-4: college town about our size, alum become famous actor, alleged to have raped a student at or after a fraternity party after a BB game On the evidence given in the problem, should you charge Stockton with rape? what standard for sufficiency of evidence?

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a the prosecutor

Problem pp. 482-4: college town about our size, alum become famous actor, alleged to have raped a student at or after a fraternity party after a BB game

  • On the evidence given in the problem, should you charge Stockton with rape?
    • what standard for sufficiency of evidence?
      • MRPC 3.6(a): no charge if not supported by “probable cause”? What does that mean?
      • n. 2. p. 486: must the prosecutor subjectively believe that the suspect committed the crime? Is that [plus evidence] the same as “probable cause to believe”?

(a) The Prosecutor

A.4)LAWYER IN CRIM. LITIGATION

problem pp 482 4 c t d
Problem pp. 482-4 c’t’d
  • What evidence supports a charge?
    • statement of the victim to detectives
    • statement of suspect (through lawyer) that they did have sex, etc.?
    • suspect’s lawyer’s offer of minor unrelated (?) guilty plea plus community service?
  • What evidence favors the suspect?
    • statement of suspect that it was consensual
    • statement of neighbor?
    • statement of victim that she had been drinking?
problem pp 482 4 c t d1
Problem pp. 482-4 c’t’d
  • If the charge is supported by “probable cause”, are you obliged to file it? What is the relevance of:
    • political pressure (gov., u. pres., st. pty. chr., campaign donors, etc.)?
    • majority of volunteered msgs. from public?
    • prior relationship with suspect’s lawyer?
    • threats from the latter source?
    • disagreement among your people who are working on the case, after “full review of evidence”? Did you ask the right question?
    • the concept of “prosecutorial discretion”?
problem pp 482 4 c t d2
Problem pp. 482-4 c’t’d
  • If you do charge, are you obliged to disclose to D’s counsel your conversation with your neighbor? MRPC 3.8(d)
    • is this the same as the basis for overturning a conviction – Brady v. Maryland, n. 4 p. 487?
    • ABA Ethics Committee, Formal Opinion 09-454 (2009)
      • language is from CPR 1969, but traces back to 1908 Canon 5 (Supp. p. 488)
      • does it require that the evidence be “material” in Brady sense?
    • Does this conversation qualify?
problem c t d
Problem c’t’d
  • What about your statement after the verdict (question (c) p. 484)? Have you in effect confessed to a violation of Rule 3.8?
    • “we never had enough on this guy”?
    • “I never knew myself, so I thought a jury should decide”?
a 4 b criminal defense atty
A.4(b) Criminal Defense Atty
  • Problem p. 489-90: now PD, asked to represent a man accused of assault in an assisted living center; he admits this one, you believe him and that he is also guilty of others
    • you have been told about victim’s psych report w/ confusion about who was in room; D says his mom knows her, and could talk to her with a wire; are you obliged to tell D about the report?
    • if D asks you to send mom with a wire, and it isn’t illegal, are you obliged to do it?
defense counsel c t d
Defense Counsel, c’t’d
  • Classic issue about cross-examination of a witness whom you believe to be truthful
  • Classic issue about how you can defend an accused whom you know to be guilty
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